HOW TO Exchange Expert Witness Information

When to Use

This CEB How-To Guide describes the steps you should take when you want to exchange expert witness information under CCP §§2034.010-2034.730. We've also included the forms for the demand and written exchange of expert witness information.

Using these materials is not a substitute for the attorney’s independent judgment, drafting, and research.

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Step 1 Once the trial date is set, calculate the date of exchange

Procedures for exchange of expert witness information cannot begin until the trial date has been set. After it is set, calculate the date when the exchange will occur. It must occur no later than 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. CCP §2034.230(b). (A later date for the exchange of expert information is also possible on motion, for good cause. CCP §2034.230(b).)

Example► If October 1 is the trial date and you make the demand on July 10: 20 days after service of the demand is July 30; 50 days before the trial date is August 12. Thus the date of exchange will be August 12, the date closer to the trial date.

Note► If the date for exchange of expert witness information falls on a Saturday, Sunday, or holiday, the time limit is extended until the next court day closer to the trial date. CCP §2016.060.

Step 2 Prepare the demand

Prepare a written demand for a simultaneous exchange of expert witness information. The demand must include (CCP §2034.230):

Form: See below for Demand for Exchange of Expert Trial Witness Information.

Step 3 Serve the demand

Serve a copy of the written demand on all parties who have appeared in the action. CCP §2034.240. Regarding service, see CCP §§1011-1013, 1015.

At the time of service, complete a proof of service and attach a copy of it to each copy of the demand you serve. Retain the original; do not file it with the court. CCP §2034.290(a). Keep originals of the demand and its proof of service, and all expert witness lists and declarations exchanged in response to the demand, until 6 months after final disposition of the action. CCP §2034.290(b).

Note► You lodge the demand with the court, and all expert witness lists and declarations exchanged in response to it, only if the contents become relevant to an issue being decided in the action. CCP §2034.290(c).

After you have served the demand for exchange under CCP §§2034.210-2034.240, all parties must participate in a mutual and simultaneous exchange of documents listing specific information about their expert witnesses.

Step 4 Prepare your expert witness information

Designation of Experts. This is a written statement, including either:

No particular form of written list is specified in CCP §§2034.010-2034.730.

Expert Witness Declarations. For each expert listed, write an expert witness declaration. See CCP §2034.260(c). This is a statement, signed by you as the party’s attorney, setting out specific information and executed under penalty of perjury. CCP §2034.260(c). It must contain:

Note► You will need an expert witness declaration signed by you (CCP §2034.260(c)) if any expert witness on your list is in a category identified in CCP §2034.210(b) (i.e., a party, an employee of a party; or someone retained by you to express an opinion in anticipation of the litigation or in preparation for trial). You do not need an expert declaration for an expert witness who is not in one of the categories of CCP §2034.210(b) (e.g., a treating physician). CCP §2034.260.

Form: See below for a form containing a party’s designation of expert witnesses, Written Exchange of Required Expert Witness Information; Expert Witness Declaration.

Step 5 If demanded, prepare copies of discoverable reports and writings

Gather and review all discoverable reports and writings, if demanded, so that you are prepared to produce them on the date and at the place specified in the demand. CCP §2034.210(c).

Note► If a party has demanded production and exchange of certain discoverable reports and writings of experts as described in CCP §2034.210(b), all parties, including the party initiating the demand, must produce and exchange them at the place and on the date specified in the demand. CCP §2034.270. If the date is not convenient, the parties can stipulate to another date or seek a protective order from the court directing a different time and place. CCP §2034.250(b)(4)

You should not assume that a demand for production under CCP §2034.210(c) will yield all materials that are discoverable. The demand procedure in CCP §2034.210(c) is expressly limited to the production of discoverable reports and writings made by any CCP §2034.210(b) expert "in the course of preparing that expert’s opinion."

Practice Tip► Use a stipulation of counsel, a deposition subpoena, or a demand for inspection to obtain all of the discoverable material in the expert’s file before taking the expert’s deposition and cross-examination him or her at trial.

Step 6 Exchange information

Serve the expert information on or before the exchange date set in the demand. CCP §2034.260. See Step 1 for calculating the date of the exchange.

Serve expert witness response, declaration, and any reports or writings, plus a proof of service by mail or at a meeting of the parties’ attorneys.

Step 7 If necessary, submit supplemental information

Prepare a supplemental expert witness list if (CCP §2034.280(a)):

To add an expert to testify on the same subject as experts designated in the original exchange by opposing party, provide (CCP §2034.280(a)-(b)):

Note► If you file your supplemental list within 20 days of the original exchange, you do not need to file a motion to submit a supplemental expert witness list.

Practice Tip► Make the newly designated experts available immediately for depositions, even if the CCP §§2024.010-2024.060 time limit has expired. CCP §2034.280(c).

Step 8 Review consequences if you fail to designate expert witnesses

The court will exclude your expert’s opinion if you unreasonably fail to timely (CCP §2034.300):

Note► For a discussion of procedures such as augmenting or amending your expert witness list or withdrawing a designated expert witness who has not been deposed, and of motions such as submitting a tardy expert witness list, see California Civil Discovery Practice, chap 11.

CEB Resources
Form: Demand for Exchange of Expert Trial Witness Information

Note► A footer showing the title of the paper in at least 10-point type, divided from the rest of the page by a printed line, is required on every page below the page number. See Cal Rules of Ct 2.110.

Copies► Original (retain with original proof of service for possible filing with court); copies for service (one for each attorney of record and unrepresented party); office copies.

download form

DEMAND FOR EXCHANGE OF EXPERT TRIAL WITNESS INFORMATION

_ _[Name of attorney; State Bar number]_ _

_ _[Address]_ _

_ _[Telephone number]_ _

_ _[Optional fax number, email address ]_ _

Attorney for _ _[plaintiff/defendant]_ _, _ _[name]_ _

Superior Court, County of _ _ _ _ _ _

_ _[Name(s)]_ _,

            Plaintiff(s)

 

vs

 

_ _[Name(s)]_ _,

            Defendant(s)

 

 

___________________________

 

)

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No. _ _ _ _ _ _

 

DEMAND FOR EXCHANGE OF EXPERT TRIAL WITNESS INFORMATION UNDER CCP §§2034.210-2034.310_ _[AND DEMAND FOR PRODUCTION OF EXPERT REPORTS AND WRITINGS UNDER CCP §2034.201(c)]_ _

 

PARTY MAKING THIS DEMAND: _ _[Name]_ _
DATE AND TIME OF EXCHANGE: _ _[Specify]_ _
PLACE OF EXCHANGE: _ _[Specify]_ _

_ _[Name of party making demand]_ _ demands under CCP §§2034.210-2034.310 that, on or before the above date of exchange and at the above place of exchange, all parties to this action participate in a mutual and simultaneous exchange of information concerning each party's expert trial witness(es), in writing as required by CCP §§2034.210-2034.310, to the following extent:

1. Either a written list containing the name and address of each natural person (including any party) whose oral or deposition testimony in the form of an expert opinion the responding party expects to offer in evidence at the trial, or a statement that the responding party does not presently intend to offer the testimony of any expert witness.

2. If any witness on the list to be exchanged is a party or an employee of a party or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, an expert witness declaration signed by the responding party's attorney of record (or, if that party is without an attorney of record, by the party), containing for each such witness:

(a) A brief narrative statement of the qualifications of the expert;

(b) A brief narrative statement of the general substance of the testimony that the expert is expected to give;

(c) A representation that the expert has agreed to testify at the trial;

(d) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial; and

(e) A statement of the expert's hourly and daily fee for providing deposition testimony.

[Add if simultaneous production of discoverable reports
and writings of listed experts under
CCP §2034.210(c) is desired]

Under CCP §2034.210(c), each party is also required to produce for inspection and copying, at the time and place of exchange stated above, any discoverable reports and writings made in the course of preparing an expert opinion by any witness on the list to be exchanged who is a party or an employee of a party or who has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.

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Date: _ _ _ _ _ _                           __[Signature]__
                                                    _ _[Typed name]_ _
                                                    Attorney for _ _[name]_ _


Form: Written Exchange of Required Expert Witness Information

Note► A footer showing the title of the paper in at least 10-point type, divided from the rest of the page by a printed line, is required on every page below the page number. See Cal Rules of Ct 2.110.

Comment► The expert witness declaration is required if any listed witness is an expert described in CCP §2034.210(b).

Copies► Original (for party initiating demand for exchange, with original proof of service affixed); copies for service (one for each party); office and client copies.

download form

WRITTEN EXCHANGE OF REQUIRED EXPERT WITNESS INFORMATION; EXPERT WITNESS DECLARATION

_ _[Name of attorney; State Bar number]_ _

_ _[Address]_ _

_ _[Telephone number]_ _

_ _[Optional fax number, email address]_ _

Attorney for _ _[plaintiff/defendant]_ _, _ _[name]_ _

Superior Court, County of _ _ _ _ _ _

_ _[Name(s)]_ _,

            Plaintiff(s)

 

vs

 

_ _[Name(s)]_ _,

            Defendant(s)

___________________________

 

)

)

)

)

)

)

)

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No. _ _ _ _ _ _

 

WRITTEN EXCHANGE OF REQUIRED EXPERT WITNESS INFORMATION (CCP 2034.260) _ _[AND EXPERT WITNESS DECLARATION (CCP §2034.260(c))]_ _

 

PARTY MAKING THIS DEMAND: _ _[Name]_ _
DATE AND TIME OF EXCHANGE: _ _[Specify]_ _
PLACE OF EXCHANGE: _ _[Specify]_ _

[Option 1: Expert witness testimony will be offered]

The name and address of each person whose expert opinion _ _[name of party]_ _ expects to offer in evidence at the trial are: _ _[List]_ _.

[Option 2: No expert testimony is presently
intended to be offered]

_ _[Name of party]_ _ does not presently intend to offer the testimony of any expert witness in evidence at the trial.

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Date: _ _ _ _ _ _                           __[Signature]__
                                                    _ _[Typed name]_ _
                                                    Attorney for _ _[name]_ _

EXPERT WITNESS DECLARATION

_ _[Name of attorney for party making demand]_ _ declares:

1. I am the attorney of record in this action for _ _[name of party]_ _.

2. I make this expert witness declaration as required by Code of Civil Procedure §2034.260(c).

3. I am informed and believe that the following facts are true about _ _[name of expert]_ _:

(a) Qualifications:

_ _[Refer to and attach a resume with the necessary qualifications or provide brief narrative statement, e.g., Dr. Keppler, who specializes in the molecular structure and strength of synthetic materials, was awarded a B.S. degree in physics from the University of California (Berkeley) in 1970, an M.S. degree in engineering from Harvard in 1972, and a Ph.D. degree in materials science from UC Berkeley in 1975. He has been employed as a structural engineer from 1975 to the present with Acme Engineering, Inc.; Adjunct Professor of Metals Science at the University California (Los Angeles) from 1977-1982; author of the following books, articles, and treatises: _ _[List]_ _; and is a member of the following professional societies: _ _[List]_ _.]_ _

(b) General substance of testimony this expert is expected to give:

_ _[Provide brief narrative statement, e.g., Dr. Keppler was retained by _ _[name of party]_ _ to conduct tests of material to determine the cause of failure of material; performed tests; and, based on tests and expertise, formed an opinion that the cause of failure was stress and that this design defect was foreseeable.]_ _

(c) This expert's hourly fee for providing deposition testimony is $_ _[amount]_ _. This expert's daily fee for providing deposition testimony is $_ _[amount]_ _.

[Continue providing information about other experts]

[4.] Each expert identified in this declaration has agreed to testify at the trial and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning any opinion and its basis.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct except for matters stated on my information and belief, and as to those matters I believe it to be true.

                                                    __[Signature]__
                                                    _ _[Typed name]_ _
                                                    Attorney for _ _[name]_ _