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Gregory P. Joseph
The author is a past chair of the Section of Litigation and a past president of the American College of Trial Lawyers.
Eleven years ago in these pages I suggested that we may take expert depositions too routinely and sometimes hurt ourselves in the process (Expert Approaches, Litigation, Vol. 28, No. 4 (Summer 2002)). That suggestion was based on the mandatory disclosure structure the Federal Rules had introduced less than a decade earlier. The fundamental question raised by the federal rules’ detailed reporting requirements—and the presumptive preclusion sanction barring undisclosed expert opinions—is whether and, if so, how to depose an expert. Taking that deposition may open the door to testimony that would otherwise be excluded, and it may dilute rather than enhance your cross.
The expert discovery rules were substantially amended three years ago, and we’ve now had 20 years’ case law experience interpreting and enforcing the rules. Are we better off not succumbing to the temptation of deposing the expert?