Expert Witness Information Exchange Demand
(CA)

Summary

The template may be used by a party to a civil action in California superior court to demand a simultaneous exchange of information relating to all persons that the parties expect to call as expert witnesses. This template includes practical guidance and drafting notes. After the trial date is set, any party may obtain discovery by demanding a mutual and simultaneous exchange by each party of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion the party expects to offer in evidence at the trial. Cal. Code Civ. Proc. § 2034.210(a). The demand also generally includes a request that each party produce all discoverable writings and reports made by any expert who is a party or employee of party or has been specially retained for purposes of the litigation. See Cal. Code Civ. Proc. §§ 2034.210(c), 2034.270. The demand must: • Be made in writing • Identify the party making the demand • State that it is being made under Cal. Code Civ. Proc. § 2034.010 et seq. and • Specify a date for the exchange of information that is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date (unless the court, on motion for good cause, orders an earlier or later date). Cal. Code Civ. Proc. § 2034.230. A demand for an exchange of information concerning expert trial witnesses may be made without leave of court, but must be made sufficiently in advance of trial. In most cases, this means the demand must be served at least 70 days before the initial trial date, but if trial is set less than 70 days before the trial date, the demand must be made within 10 days after trial setting. Cal. Code Civ. Proc. § 2034.220. The demand must be served on all parties who have appeared in the action. Cal. Code Civ. Proc. § 2034.240. The demanding party must retain the original demand and all original expert witness lists and declarations until six months after final disposition of the case. Cal. Code Civ. Proc. § 2034.290(b). These documents are not filed with the court unless relevant to an issue in the action. Cal. Code Civ. Proc. § 2034.290(a), (c); Cal. Rules of Ct., Rule 3.250(a)(13)–(16), (b). Note that the exchange of expert witness information demanded must be "mutual and simultaneous." See Cal. Code Civ. Proc. § 2034.210(a). Thus, when making a demand under Cal. Code Civ. Proc. § 2034.210, you must be prepared to simultaneously provide information concerning your own expert witnesses. The statute does not permit a unilateral demand. See Cal. Fairfax v. Lords, 138 Cal. App. 4th 1019, 1026–27 (2006) (trial court committed prejudicial error by allowing medical malpractice defendant to delay his designation of retained expert witnesses until 20 days after plaintiff had designated his own expert, instead of enforcing simultaneous exchange of information as required by statute); Hernandez v. Superior Court, 112 Cal. App. 4th 285, 297 (2003) (case management order requiring unilateral disclosure of identity, curriculum vitae, and opinion concerning causation of each medical expert who would support plaintiffs' wrongful death claims was not proper exercise of trial court's power to manage complex litigation). If a party's expert witness list includes an expert 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, the designation of that witness must include or be accompanied by an expert witness declaration containing specified information. See Cal. Code Civ. §§ 2034.210(b), 2034.260(c). For a template illustrating the format of such a declaration, see Expert Witness Information Declaration (CA). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For more information on exchanges of expert witness information, see Expert Witness Discovery (CA).