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March 30, 2015 Articles

Expert Depositions: Online Preparation Techniques for Litigators

How to find and prepare for all the skeletons in your witness's closet.

By Kevin Hartzell

Your expert deposition preparation is nearing completion. You have read the expert’s CV, reviewed the articles she has published, read the deposition transcripts from her other cases, and checked all of the information mentioned on the webpage for her consulting firm. But now you want to dig a little deeper and find something in her background that she does not expect you to know.

Maybe during her previous employment at an investment bank she worked on municipal bond issuances, rather than on commercial lending deals—the topic on which she now claims to be an expert (based on her investment banking experience). Maybe in 2009 her business unit made all its profits selling exotic financial instruments—and now she says your client deceived investors by selling those same instruments at the same time. Maybe she gave a speech encouraging young professionals to work at big banks because making the economy more efficient will benefit even the most humble of consumers—an idea that would call into question her conclusion that your big bank client caused the world financial crisis and brought untold misery to millions.

The expert you will be deposing in a few days’ time might not even remember making these statements. And if she does, she might think they are lost to history. But there are a number of research tools at your disposal to help unearth the more obscure facts in an expert witness’s background, those that the expert has conveniently left off of her CV. Not every expert has skeletons in her closet. Many do not. But if you know how to find any skeletons the expert may have hidden, you will improve your deposition, and your client’s case, by finding them.

The “Wayback Machine”

They say that the Internet never forgets. The Internet Archive, also known as the “Wayback Machine” has been helping prove the truth of that maxim since 1996. The Internet Archive is exactly what it sounds like. Run by a non-profit organization, the Internet Archive “was founded to build an Internet library.” Much like a library has an archive of magazines and newspapers stretching back decades, the Internet Archive preserves versions of publicly available websites as they existed on various historic dates since 1996: “435 billion web pages saved over time.”

The Internet Archive uses web-crawling tools to create archived “snapshots” of websites as they existed on the date of the snapshot. If the Internet Archive’s crawler visited the website on August 8, 2008, then you will see a version of that website as it existed on August 8, 2008. For some websites, the Internet Archive will have hundreds of copies; for some websites, it will have only a few. (And for some it will have no record.) For example, the Internet Archive took snapshots of the American Bar Association website 205 times between July 11, 2000 and late February 2015.

To find historic webpages on the Internet Archive, simply type in a URL on the Wayback Machine’s main page. This can be the web address of the expert’s current firm, or even a defunct URL for a firm that is no longer in business. If the firm no longer has a website, you can type in what you think the web address might have been, and find it through trial and error.

The Internet Archive search results page will display each date for which it has an archived version of that website. After selecting a date, the Archive will take you to an archived version of the website’s front page as it existed on that day. From there, click the available links to go deeper into the snapshot for that page. For some dates only the front page will be available. For other dates secondary and even tertiary pages might be available.

When researching the expert prior to her deposition, you may be able to view differing levels of detail about her firm and her work history for different dates. Perhaps for one date you will only be able to see the page describing the group in which the purported commercial lending expert worked. For other dates you may be able to see the detail page showing the expert’s biography and work history, and perhaps even sub-pages summarizing specific transactions she closed.

The Internet Archive presents new ways to impeach an expert witness—or, for that matter, many fact witnesses. If you are able to show that for some period of years her work focused on something other than what she is now claiming, you can undermine her claim that she has actual expertise relevant to your case (and perhaps raise concerns about her honesty). If her firm’s website in 2008 said that she dedicated all her time to municipal bonds, you could ask why she just testified that since 1998 she has spent all her time on private, commercial loan deals. When during her deposition the expert makes helpful admissions after being confronted with copies of old webpages, you likely will be able to use her admissions to impeach her at trial.

Social Media

A growing number of professionals are using social media platforms such as Facebook and Twitter to market themselves to potential clients. An expert may find it valuable to raise her profile by posting links to news stories or information about recent developments in her industry. But each new posting presents an opportunity to mine for material to use for impeachment.

Attempting to find your expert on Facebook is easy enough: Just search for your expert’s name and the name of the organization with which she is affiliated. If the expert has made her Facebook page public, you will be able to see what she is broadcasting to the world. If she has posted a comment that appears favorable to your position—praising a court decision that went in your client’s direction or defending your client’s industry from criticism—you now have a way contradict her current arguments with her own words.

Twitter is another forum in which professionals market their expertise by sharing their views on recent developments. By reading an expert’s Twitter feed, you can quickly scan their commentary on numerous topics. While tweets may be short, they are less formal than articles or blog posts; individuals are sometimes more candid on Twitter than in other fora.

Keep in mind that many courts have ruled that content from social media websites are discoverable. See Jason Krause, Avoiding Costly Mistakes in Social Media Discovery (July 24, 2013). You may, therefore, request copies of Facebook posts or tweets that the expert has authored, but be sure to appropriately tailor your request to your circumstances. Id. While it may be easier to allow your adversary to provide you with his expert’s social media materials, do not rely on good faith alone. If a witness’s social media postings are publicly available, check your adversary’s work. When you receive his production, check Facebook, Twitter, and LinkedIn to make sure you received all the materials you requested—if not, you could request additional productions. Better yet, check each relevant witness’s social media pages before sending discovery requests, and make copies of anything interesting. If the expert takes the opportunity to delete anything problematic, you will know and can take appropriate action.

Finally, opportunities for witness-specific research (and discovery) will further expand as professional websites (such as LinkedIn and even webpages maintained by firms and individual experts) adopt social networking-type tools that allow professionals to publish blog posts, podcasts, and video files. Finding a video in which an expert witness contradicts her current position could dramatically improve your case—such video evidence could have more impact on a jury than an article written in a professional journal. But if you are not looking in the right places, you might never find it.

Google Advanced Search

As you know, Google’s Advanced Search tool can assist your research by delivering targeted search results. See Jason Briody, Improving Your Google Searches with Advanced Queries (March 14, 2014). Google Advanced Search can also help you delve deeper into an expert witness’s background by searching within specific websites. This can help you find publications and presentations by your expert that may be more difficult to locate using generalized search tools.

To utilize this tool, go to the Google Advanced Search page, and “narrow your results” to a “cite or domain.” You can then search for your expert’s name or, for example, her current or prior firm’s website or any professional organizations of which she is a member. Searching for this author’s name on the American Bar Association website will likely show you results including this article and others published by Kevin Hartzell.

Using Google Advanced Search will show you both current results and older documents. For example, a professional organization may no longer have links to a PowerPoint presentation that an expert witness published 10 years ago, making it difficult if not impossible to find by browsing the website. But if the PowerPoint is still on the website (but hidden), Google Advanced Search can often locate it. Google Advanced Search can also make expert witness research more efficient: By showing a list of links that all pertain to the expert witness, you can review a number of relevant pages all at once.

Note that Google Advanced Search cannot search all webpages—some pages are configured to prevent Google Advanced from searching within the website.


The online research techniques discussed in this article are some of the many ways you can enhance your preparation and improve the results of your expert deposition. But these techniques have other applications as well. Researching a potential expert prior to retention can help you avoid suffering any unpleasant surprises when your expert is deposed. And learning more about the background of many fact witnesses, corporate entity, or business unit can be helpful as you prepare for fact discovery and for trial.

Kevin Hartzell – March 30, 2015