By Eileen Burkhalter Smith
I think a big challenge to a young lawyer in taking any deposition is knowing what you are entitled to “discover” through questioning and document review. This is especially difficult with expert witnesses who often have files and documents you may not have seen prior to the deposition.
I once had an opposing lawyer, one who had been practicing much longer than me, get very irritated with me when I asked to review the expert’s file during a deposition. The expert’s file was lengthy, and he had referred to it throughout the deposition. Even though we had discussed a few pages in the file, I asked to look at the whole thing, page by page. The opposing lawyer was shocked and said “do you want to see what’s in his wallet, too?!” I was surprised by his obvious frustration, and I believe my response was “uh, no, that is okay.”
At the time, I knew I was entitled to see the file, and I could not figure out why my opponent was so exasperated. The rules don’t require me to prove that this information is relevant, and it certainly isn’t privileged. I think if the expert brings it into the deposition, I am entitled to see it. Next time, I am going to say, “Sure. He brought it into the deposition, so hand it over!”