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Last modified
7/14/2009 5:02:30 PM
Creation date
5/20/2009 11:01:39 AM
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UCREFRP
UCREFRP Catalog Number
7623
Author
Lamb, B. L. and D. A. Sweetman.
Title
Guidelines for Preparing Expert Testimony in Water Management Decisions Related to Instream Flow Issues.
USFW Year
1979.
USFW - Doc Type
Instream Flow Information Paper No. 1, Revised,
Copyright Material
NO
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Under modern practice and Federal rules, the names of expert witnesses, <br />background resumes, and a brief statement of the nature of the experts' <br />testimony is exchanged by the parties' attorneys in advance of trial. This <br />also applies in adminstrative proceedings, where frequently the parties will <br />stipulate to abide by the Federal Rules of Civil Procedure. <br />A less often used procedure is the use of written questions served upon <br />the opposition and to be answered under oath (interrogatories). Sometimes this <br />is used to initiate discovery by asking "who are the scientist who have any <br />knowledge on this subject" or "where are your freshwater laboratories <br />located," or "whom have you consulted in bringing this lawsuit?" <br />Biologists are virtually united in their horror of the all powerful <br />discovery procedures, drafted and enacted by lawyers, which can force them to <br />photo-duplicate massive amounts of material. Some lawyers have argued that, <br />unlike conspiring executives in an antitrust case, scientists should not be <br />put through the ordeal of having filing cabinets raided. Actually, the Federal <br />Rules of Civil Procedure, applicable in Federal courts but adopted intact by <br />most States, provide for restricted discovery of an expert's data. Rule 26 <br />(b)(1) of the Federal Rules of Civil Procedure states the basic rule: <br />Parties may obtain discovery regarding any matter, not <br />privileged, which is relevant to the subject matter <br />involved in the pending action, whether it relates to the <br />claim or defense of the party seeking discovery or to the <br />claim or defense of any other party, including the <br />existence, description, nature, custody, condition and <br />location of any books, documents, or other tangible things <br />and the identity-and location of persons having knowledge <br />of any discoverable matter. It is not ground for objection <br />that the information sought appears reasonably calculated <br />to lead to the discovery of admissible evidence. <br />From this base, the Rules in Section 26 (b)(4) set forth an exception for <br />experts: <br />Discovery of facts known and opinions held by experts, <br />otherwise discoverable under the provisions of subdivision <br />(b)(1) of this rule and acquired or developed in anticipa- <br />tion of litigation or for trial,'may be obtained only as <br />follows: <br />(A)(i) A party may through interrogatories require any <br />other party to identify each person whom the other party <br />expects to call as an expert witness at trial, to state <br />the subject matter on which the expert is expected to <br />testify, and to state the substance of the facts and <br />opinions to which the expert is expected to testify and a <br />summary of the grounds for each opinion. (ii) Upon motion, <br />the court may order further discovery by other means, <br />subject to such restrictions as to scope and such <br />provisions, pursuant to sudivisions (b)(4)(C) of this <br />rule, concerning fees and expenses as the court may deem <br />appropriate." (Emphasis supplied.) <br />8
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