In my experience as an Expert Witness, interrogating attorneys frequently demand that expert witnesses produce their books and articles by a demand written something like this:
All the publications you have ever written.
For a frequently published author, such as myself, that can be a boatload of stuff if I kept any of it. (I pdf my recent articles and publish them on my website at www.dennisjwall.com. I also insert hyperlinks to my books there. If anyone wants to put their hands on those materials, there they are.)
It is also my experience that retaining attorneys are usually very good about protecting their experts from harassing discovery demands, but there is sometimes a rare case as I understand it when the retaining attorney does not oppose such discovery and the expert is expected to protect herself or himself, and even more rarely, that in a very few cases the retaining attorney tells the experts to produce all the publications they have.
In those situations, I commend the following approaches to fellow expert witnesses and to fellow attorneys who retain expert witnesses, as well. One possible line of response is based on the applicable Rules of Civil Procedure. The rules are generally explicit about what affirmatively can be demanded from expert witnesses in litigation, and all the publications you have ever written -- in fact, any publications you have ever written that you did not rely on in the case at bar -- are simply not written there. In the Federal Court system, that is Rule of Civil Procedure 26(a)(2) and 26(b)(4), for example, and in Florida that is Rule 1.280(b)(5). In particular, the Federal Rules require only a list of publications, not the publications themselves. Fed. R. Civ. P. 26(a)(2)(B)(iv) (disclosures required of a testifying expert witness include disclosure of "the witness's qualifications, including a list of all publications authored in the previous 10 years").
A second or possible 'fallback' position in jurisdictions in which the civil rules do not specifically address the question, might involve reference to the time limitations on revealing previous expert witness testimony. In general terms, the time period for a party which has retained an expert witness expected to testify at trial, is to disclose the identity of cases in which she or he has previously testified within a reasonable time period, for example. See Fla. R. Civ. P. 1.280(b)(5). There should arguably be no good reason not to impose at most similar limitations on production of publications authored by the expert witness, as the limitations imposed by the Rules themselves on disclosure of testimony previously given by the expert witness in litigation.
© 2013 by Dennis J. Wall. All rights reserved. No claim to original U.S. Government works.
Please Read The Disclaimer.