Discovery Of Expert Information Over A Civil Rule 26 (b)(5)(B) Objection.

There seems to be expert(s) everywhere who are willing to investigate, document and analyze almost any subject matter on short notice and later testify about their efforts, if only given the chance. Sometimes a party or parties to litigation may attempt to protect discovery of what expert(s) find at the scene of a loss even though the expert(s) were among the first to arrive and were able to collect important evidence before it dissipated. For example, it is not uncommon for a property owner to call their insurer upon discovery of a loss caused by landslide, fire, flood or earthquake (or some other event) and, in turn, the insurer dispatches an expert (or communicates with one already on site) to try and quickly discern and document the cause of the loss, as well as to determine whether any ongoing damages can be mitigated. However, sometimes the party who tasked the expert, near the inception or shortly after the occurrence of loss, does not want to employ the expert for purposes of litigation for tactical reasons. In Washington, Civil Rule 26 (b)(5)(B) may be used by a party to try and protect such expert information from discovery providing in pertinent part:

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to state such other information about the expert as may be discoverable under these rules. (ii) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

CR 26 (b)(5)(B) (emphasis added).

I have been involved in many case(s) in which an expert (e.g., a geologist; a fire investigator, etc.) may have the best and perhaps only information of what actually happened but my opponent has attempted to conceal or exclude it claiming the information was gathered by a consulting expert for the purposes of or in anticipation of litigation and that he or she has no intention of calling the expert to testify at trial. A typical response to such an objection is that the information sought could not and cannot be obtained on the critical issue of causation by any other means (i.e., a substantial need exists and "exceptional circumstances" are present). See CR 26 (b)(5)(B). For example, the party seeking the expert discovery over objection may argue that the expert is the kind of exceptional witness discussed in Tope v. King County, 189 Wn. 463 (1937); an expert who was able to observe the “premises at the time that the damage was wrought” and hence his testimony is more salient and objective by the very nature of the timing and the trained skill of his factual observations. The determination of whether the party seeking discovery has shown exceptional circumstances (i.e., that it is impracticable or impossible to obtain the information by other means) is vested in the sound discretion of the trial judge, who should look at the facts and circumstances of each case in arriving at an ultimate conclusion. See Heidebrink v. Moriwaki, 104 Wn.2d 392 (1985). See also, Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979); Roggelin v. Auto-Owners Ins., 2002 Ohio 7310 (Ohio App. 2002).

Another argument for compelling the discovery of the expert information over a Civil Rule 26 objection is that the information was not obtained or developed for or in anticipation of litigation but rather that the expert was dispatched for some other purpose and in a different context. In determining whether a particular document was prepared in "anticipation of litigation" within the meaning of Civil Rule 26 a court should consider the expectations of the specific parties involved in light of the rationale or general policy of the rules to allow broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries. Id. See generally, Johnson v. McCay, 77 Wn.App. 603, 609 (1995) In Re: Firestorm 1991, 129 Wn.2d 130 (1996); Escalante v. Sentry Ins., 49 Wn.App. 375 (1987). The party seeking disclosure of expert or work-product information over objection may also argue waiver where all or part of the discovery sought has previously been voluntarily disclosed. See Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002).

Disputes over the discovery and/or use of expert information are usually very contentious because their outcome may also determine the outcome of the entire lawsuit. The facts concerning how the expert was originally employed, for what purpose and whether the information should be shared also usually present difficult issues and balancing tests (e.g., broad discovery/fairness versus individual party rights) for the court to decide.

Law Tech: JD Supra

The JD Supra website is a good place to find articles about specific legal topics, legal briefing and pleadings, and case law, as well as to learn a bit more about a lawyer's practice. A registered user of the site can upload documents by category or type and posted documents are searchable and can be found on the Web; creating a repository of legal documents with an internet cast. According to the website owners:

JD Supra lets you create an impressive online portfolio of your articles, newsletters, alerts, court filings, and presentations in minutes. Then, we help you get noticed (by prospective clients, colleagues and the media), so you can concentrate on doing what you do best – great work!

A single user or firm can post documents and create a profile for free but they can also pay a registration fee to be able to post contact information and to employ the site for more powerful marketing purposes. A "widget" for JD Supra can be found on the lower sidebar of this site.

Law Tech: More Reports About How Technology Will Change The Practice of Law.

The news from recent legal conference(s) focusing upon new technology and featuring authors/speakers such as Richard Susskind is that technology will fundamentally change legal practice and the ways legal services are provided in the future. However, this information, including Mr. Susskind's message, somehow doesn't seem that new, but rather, for the most part, recycled. Yes, we have new forms of and uses for communication technology, but will these technologies necessarily ease conflict, promote economy (e.g., enable us to focus upon preventative law) or result in a lower profile for law as some are saying? Mr. Susskind is also unclear about precisely what legal services he is talking about. The widespread use of new technologies in response to changing social times will no doubt create some change in all areas of social and business life. But, in the process, a host of new issues and accompanying laws will be created that will require resolution by more old-fashioned means, such as litigation in our newly wired courts. I am reminded of Jeremy Rifkin's writings on social entropy and conclude this post with some quotes from his 1980 book Entropy, A New World View as food for thought:

"...every technology ever conceived by the genius of humankind is nothing more than a transformer of energy from nature's storehouse. In the process of that transformation, the energy flows through the human system where it is used for a fleeting moment to sustain life (and the artifacts of life) in a no equilibrium state. At the other end of the flow, the energy eventually ends up as dissipated waste, unavailable for future use.''

Rifkin continues: "The next time a technician, politician, or businessman tells you he or she can eliminate the secondary problems associated with a particular program, product, or process with better planning or better leadership or better design, think about the second law. It is true that the secondary disorders caused by a particular technology can be temporarily solved by the application of new technology. But the solution will inevitably result in even greater disorders.''

We need new technology to streamline and ease communication and the sharing of an increasing amount of information, as well as to allow existing institutions to accommodate more work. However, a view that the increased use of new technology will somehow reduce or materially alter the role of law or legal practice seems counterintuitive. It may well be that just the opposite occurs: that rapid adoption of technology in society and law practice will force everyone including practitioners of the law to step back, slow change, and return to or strive harder to maintain the tried, the more predictably stable and sustainable means and methods of maintaining order and resolving disputes in our world.

Construction Law: New Amendment to House Bill 1393.

An amendment proposed by Representative Larry Springer of Kirkland to House Bill 1393 concerning "consumer protection in home construction" would create a seven-member Home Construction Board (Board) within the Office of Consumer Education for Home Construction (Office) to investigate and mediate construction defect claims.

Among other things, the proposal would allow the Board to use the services of neutral third parties to investigate, assess, and mediate claims creating an account to fund the Office from contractor fees charged by the Department of Labor and Industries. The proposed bill would also require the Office to examine issues involved in establishing a recovery fund to provide compensation to residential real property homeowners through a claim filing process and would provide that the common law implied warranty of habitability extends to subsequent purchasers who purchase the property within six years of construction. The proposed law would also limit damages recoverable under the common law implied warranty of habitability to the cost of repairs, or if those are clearly disproportionate to the loss in market value, limit damages to the loss in market value. Finally, the law proposes a requirement that every contract for the sale or construction of new residential real property provide for written express warranties to the purchaser or owner of the property complying with detailed requirements and including minimum levels of insurance coverage. The new amendment passed in the House by voice vote on March 11, 2009. The bill was referred to the Senate Labor, Commerce & Consumer Protection Committee on March 13, 2009.

Civil Procedure: Pre-Suit Filing Requirements Meant to Screen, Streamline and/or Prevent Litigation.

Whenever a particular kind of litigation becomes abundant, cumbersome and/or very costly, state courts and legislatures often attempt to meet it with some sort of control or prophylactic measure. In Washington, construction defect litigation was met by RCW 64.50.020 (mandating notice of claim and procedures for negotiations pre-suit) and RCW Chapter 64.55 (prescribing inspection, arbitration and mediation procedures for multi-unit residential building litigation). Lawsuits against governmental entities have long required compliance with pre-suit notice and claim procedures under RCW 4.96.020. In California, laws attempt to prevent frivolous or vexatious litigation by requiring court approval of actions brought by person(s) deemed vexatious. In contrast, Washington law tends to address issues of possible 'vexatious litigation' only after a case is underway. These are just a few examples of laws that attempt to blunt or streamline litigation that is viewed as particularly burdensome to society.

Due to the ever increasing cost of litigation and the strain it can put on public services and private industry, we will likely see an increase in the number of laws that subject new litigation to pre-suit scrutiny (especially in this economy). It makes sense to track such legislation in other states, not only because similar measures could be adopted here in some form, but also because laws seeking to improve court procedure can provide good ideas for argumentation by analogy.

Recent examples include a newly proposed tort reform law in Oklahoma concerning suits against professionals. Oklahoma House Bill 1570 would require people filing civil lawsuits for professional negligence to attach an affidavit stating that they had consulted a qualified expert who had reviewed the facts and had provided a written opinion that the facts support the lawsuit’s allegations. The proposed bill provides for dismissal of the suit if the required affidavit is not provided. Those opposing the new law argue, among other things, that it would create an unconstitutional monetary barrier to courthouse access for litigants. It was estimated that a person filing a malpractice lawsuit (at least in Oklahoma) would have to spend on average between $500 and $5,000 for an expert opinion on a lawsuit’s merit.

As argued by opponents of the proposed Oklahoma law, pre-filing requirements can be so costly and/or confusing that they can undermine policies of fairness and free access. For example, time sensitive notice provisions can be very tricky and are often labeled as unfair "traps for the unwary" which attorneys, let alone pro se litigants, can easily violate. See e.g., Lakemont Ridge HOA v. Lakemont Ridge Ltd. P'ship, 125 Wn.App. 71 (2005); Christiansen v. Ellsworth, 162 Wn.2d 365 (2007).

If you have an example of a law or court rule (in place or just proposed) that creates what might be considered a particularly burdensome or tricky pre-suit hurdle for plaintiffs, please share it with a comment to this post including any thoughts you may have about whether the requirement(s) imposed operate fairly or present, in your opinion, any basis for constitutional or other challenge.

Law Tech: Ideas to Insure Innovation?

The article "50 Ways to Foster a Sustainable Culture of Innovation" by Mitch Ditkoff contains some ideas for building environments helpful to innovation. It seems like people in all sectors of our society are encouraging creativity as the economy struggles even if their not sure what form(s) it should take. A speech delivered by new U.S. Treasury Secretary Timothy Geithner today emphasized that economic strength is derived from 'the doers, the makers of things' and 'the innovators who create and expand enterprises.' The popularity (or necessity) of the concepts of change and innovation has also hit the law and the legal profession. I notice that large firms especially are touting new departments and expertise in all things 'green'. The same firms are mostly downsizing while trying to figure out how to best serve and attract new business.

Another thing I find interesting is the number of technology and legal theorists predicting profound changes in how legal services will be provided in the near future because of, in large part, new technologies. I'm wondering whether these voices might be sourced in personal disenfranchisement from conventional systems or by a desire to market the technology. In general, however, I am somewhat skeptical about 'timing' as, among other things, I have been listening to debates about the use of cameras in the courtroom for over two decades now. Recently, however, federal judges have allowed journalists to cover court proceedings using Twitter, so, maybe new technology is gaining ground faster.

Nonetheless, there are some antithetical differences (purposes and goals) between the law and engineering/technology that often mar attempts to join them in theory or practice. It seems that law is designed in many respects to slow innovation in order that society can organize and stabilize itself in the midst of change. Also, as society becomes more complex (more information and more technology) more law inevitably follows. Finally, law practice is fundamentally a 'people' profession that often depends upon direct, face-to-face human interaction that communication technologies cannot replace. In any event, I think that Mr. Ditkoff's "50 Ways" article contains some good ideas for lawyers and anyone dealing with the legal profession in times of change and innovation (slow or fast, real or just theoretical).

Discovery Practice: Using Forms/Checklists at Depositions.

Here is a good suggestion from Paul Luvera, the veteran plaintiffs' lawyer, on using a form to record significant events and impressions at depositions. Paul is right, so often lawyers get caught up with happenings at deposition(s) such as formulation of questioning, document review and side disputes that it can be difficult to focus on the testimony. The form and checklist offered by Mr. Luvera would aid concentration, prioritize tasks and help insure that the lawyer leaves the deposition with all essential information. I have used similar forms for specific kinds of cases and fact patterns which help ease deposition preparation, as well as the formulation of other discovery tasks.