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 California Civil Procedure
California Discovery
1986 Discovery Act Code Provisions
 California Code of Civil Procedure Section 2034

 

California Code of Civil Procedure Section 2034

2034.  (a) After the setting of the initial trial date for the
action, any party may obtain discovery by demanding that all parties
simultaneously exchange information concerning each other's expert
trial witnesses to the following extent:
   (1) Any party may demand a mutual and simultaneous exchange by all
parties 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 any party expects to offer
in evidence at the trial.
   (2) If any expert designated by a party under paragraph (1) 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, the
designation of that witness shall include or be accompanied by an
expert witness declaration under paragraph (2) of subdivision (f).
   (3) Any party may also include a demand for the mutual and
simultaneous production for inspection and copying of all
discoverable reports and writings, if any, made by any expert
described in paragraph (2) in the course of preparing that expert's
opinion.
   This section does not apply to exchanges of lists of experts and
valuation data in eminent domain proceedings under Chapter 7
(commencing with Section 1258.010) of Title 7 of Part 3.
   (b) Any party may make a demand for an exchange of information
concerning expert trial witnesses without leave of court.  A party
shall make this demand no later than the 10th day after the initial
trial date has been set, or 70 days before that trial date, whichever
is closer to the trial date.
   (c) A demand for an exchange of information concerning expert
trial witnesses shall be in writing and shall identify, below the
title of the case, the party making the demand.  The demand shall
state that it is being made under this section.
   The demand shall specify the date for the exchange of lists of
expert trial witnesses, expert witness declarations, and any demanded
production of writings.  The specified date of exchange shall be 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 and a showing of good cause, orders an earlier or later date
of exchange.
   (d) The party demanding an exchange of information concerning
expert trial witnesses shall serve the demand on all parties who have
appeared in the action.
   (e) A party who has been served with a demand to exchange
information concerning expert trial witnesses may promptly move for a
protective order. This motion shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.
   The court, for good cause shown, may make any order that justice
requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense.  The
protective order may include, but is not limited to, one or more of
the following directions:
   (1) That the demand be quashed because it was not timely served.
   (2) That the date of exchange be earlier or later than that
specified in the demand.
   (3) That the exchange be made only on specified terms and
conditions.
   (4) That the production and exchange of any reports and writings
of experts be made at a different place or at a different time than
specified in the demand.
   (5) That some or all of the parties be divided into sides on the
basis of their identity of interest in the issues in the action, and
that the designation of any experts as described in paragraph (2) of
subdivision (a) be made by any side so created.
   (6) That a party or a side reduce the list of employed or retained
experts designated by that party or side under paragraph (2) of
subdivision (a).
   If the motion for a protective order is denied in whole or in
part, the court may order that the parties against whom the motion is
brought, provide or permit the discovery against which the
protection was sought on those terms and conditions that are just.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
   (f) All parties who have appeared in the action shall exchange
information concerning expert witnesses in writing on or before the
date of exchange specified in the demand.  The exchange of
information may occur at a meeting of the attorneys for the parties
involved or by a mailing on or before the date of exchange.
   (1) The exchange of expert witness information shall include
either of the following:
   (A) A list setting forth the name and address of any person whose
expert opinion that party expects to offer in evidence at the trial.

   (B) A statement that the party does not presently intend to offer
the testimony of any expert witness.
   (2) If any witness on the list is an expert as described in
paragraph (2) of subdivision (a), the exchange shall also include or
be accompanied by an expert witness declaration signed only by the
attorney for the party designating the expert, or by that party if
that party has no attorney.  This declaration shall be under penalty
of perjury and shall contain:
   (A) A brief narrative statement of the qualifications of each
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.
   (E) A statement of the expert's hourly and daily fee for providing
deposition testimony and for consulting with the retaining attorney.

   (g) If a demand for an exchange of information concerning expert
trial witnesses includes a demand for production of reports and
writings as described in paragraph (3) of subdivision (a), all
parties shall produce and exchange, at the place and on the date
specified in the demand, all discoverable reports and writings, if
any, made by any designated expert described in paragraph (2) of
subdivision (a).
   (h) Within 20 days after the exchange described in subdivision
(f), any party who engaged in the exchange may submit a supplemental
expert witness list containing the name and address of any experts
who will express an opinion on a subject to be covered by an expert
designated by an adverse party to the exchange, if the party
supplementing an expert witness list has not previously retained an
expert to testify on that subject.  This supplemental list shall be
accompanied by an expert witness declaration under paragraph (2) of
subdivision (f) concerning those additional experts, and by all
discoverable reports and writings, if any, made by those additional
experts.  The party shall also make those experts available
immediately for a deposition under subdivision (i), which deposition
may be taken even though the time limit for discovery under Section
2024 has expired.
   (i) On receipt of an expert witness list from a party, any other
party may take the deposition of any person on the list.  The
procedures for taking oral and written depositions set forth in
Sections 2025, 2026, 2027, and 2028 apply to a deposition of a listed
trial expert witness except as follows:
   (1) The deposition of any expert described in paragraph (2) of
subdivision (a) shall be taken at a place that is within 75 miles of
the courthouse where the action is pending.  However, on motion for a
protective order by the party designating an expert witness, and on
a showing of exceptional hardship, the court may order that the
deposition be taken at a more distant place from the courthouse.
   (2) A party desiring to depose any expert witness, other than a
party or employee of a party, who is either (A) an expert described
in paragraph (2) of subdivision (a) except one who is a party or an
employee of a party, (B) a treating physician and surgeon or other
treating health care practitioner who is to be asked during the
deposition to express opinion testimony, including opinion or factual
testimony regarding the past or present diagnosis or prognosis made
by the practitioner or the reasons for a particular treatment
decision made by the practitioner, but not including testimony
requiring only the reading of words and symbols contained in the
relevant medical record or, if those words and symbols are not
legible to the deponent, the approximation by the deponent of what
those words or symbols are, or (C) an architect, professional
engineer, or licensed land surveyor, who was involved with the
original project design or survey for which he or she is asked to
express an opinion within his or her expertise and relevant to the
action or proceeding, shall pay the expert's reasonable and customary
hourly or daily fee for any time spent at the deposition from the
time noticed in the deposition subpoena or from the time of the
arrival of the expert witness should that time be later than the time
noticed in the deposition subpoena, until the time the expert
witness is dismissed from the deposition, whether or not the expert
is actually deposed by any party attending the deposition.  If any
counsel representing the expert or a nonnoticing party is late to the
deposition, the expert's reasonable and customary hourly or daily
fee for the time period determined from the time noticed in the
deposition subpoena until the counsel's late arrival, shall be paid
by that tardy counsel.  However, the hourly or daily fee shall not
exceed the fee charged the party who retained the expert except where
the expert donated his or her services to a charitable or other
nonprofit organization.  A daily fee shall only be charged for a full
day of attendance at a deposition or where the expert was required
by the deposing party to be available for a full day and the expert
necessarily had to forego all business he or she would have otherwise
conducted that day but for the request that he or she be available
all day for the scheduled deposition.  In a worker's compensation
case arising under Division 4 (commencing with Section 3201) or
Division 4.5 (commencing with Section 6100) of the Labor Code, a
party desiring to depose any expert on another party's expert witness
list shall pay this fee.
   The party taking the deposition shall either accompany the service
of the deposition notice with a tender of the expert's fee based on
the anticipated length of the deposition or tender that fee at the
commencement of the deposition.  The expert's fee shall be delivered
to the attorney for the party designating the expert.  If the
deposition of the expert takes longer than anticipated, the party
giving notice of the deposition shall pay the balance of the expert's
fee within five days of receipt of an itemized statement from the
expert.  The party designating the expert is responsible for any fee
charged by the expert for preparing for the deposition and for
traveling to the place of the deposition, as well as for any travel
expenses of the expert.
   (3) The service of a proper deposition notice accompanied by the
tender of the expert witness fee described in paragraph (2) is
effective to require the party employing or retaining the expert to
produce the expert for the deposition.  If the party noticing the
deposition fails to tender the expert's fee under paragraph (2), the
expert shall not be deposed at that time unless the parties stipulate
otherwise.
   (4) If a party desiring to take the deposition of an expert
witness under this subdivision deems that the hourly or daily fee of
that expert for providing deposition testimony is unreasonable, that
party may move for an order setting the compensation of that expert.
This motion shall be accompanied by a declaration stating facts
showing a reasonable and good faith attempt at an informal resolution
of each issue presented by the motion.  Notice of this motion shall
also be given to the expert.  In any such attempt at an informal
resolution, either the party or the expert shall provide the other
with (A) proof of the ordinary and customary fee actually charged and
received by that expert for similar services provided outside the
subject litigation, (B) the total number of times the presently
demanded fee has ever been charged and received by that expert, and
(C) the frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
   In addition to any other facts or evidence, the expert or the
party designating the expert shall provide, and the court's
determination as to the reasonableness of the fee shall be based upon
(A) proof of the ordinary and customary fee actually charged and
received by that expert for similar services provided outside the
subject litigation, (B) the total number of times the presently
demanded fee has ever been charged and received by that expert, and
(C) the frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion.  Provisions (B) and (C)
shall apply to actions filed after January 1, 1994.  The court may
also consider the ordinary and customary fees charged by similar
experts for similar services within the relevant community and any
other factors the court deems necessary or appropriate to make its
determination.
   Upon a determination that the fee demanded by that expert is
unreasonable, and based upon the evidence and factors considered, the
court shall set the fee of the expert providing testimony.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to set the expert witness fee, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
   (j) Except as provided in subdivisions (k), (l), and (m), on
objection of any party who has made a complete and timely compliance
with subdivision (f), the trial court shall exclude from evidence the
expert opinion of any witness that is offered by any party who has
unreasonably failed to do any of the following:
   (1) List that witness as an expert under subdivision (f).
   (2) Submit an expert witness declaration.
   (3) Produce reports and writings of expert witnesses under
subdivision (g).
   (4) Make that expert available for a deposition under subdivision
(i).
   (k) On motion of any party who has engaged in a timely exchange of
expert witness information, the court may grant leave to (1) augment
that party's expert witness list and declaration by adding the name
and address of any expert witness whom that party has subsequently
retained, or (2) amend that party's expert witness declaration with
respect to the general substance of the testimony that an expert
previously designated is expected to give.  This motion shall be made
at a sufficient time in advance of the time limit for the completion
of discovery under Section 2024 to permit the deposition of any
expert to whom the motion relates to be taken within that time limit.
However, under exceptional circumstances, the court may permit the
motion to be made at a later time.  This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
motion.  The demand, and all expert witness lists and declarations
exchanged in response to it, shall be lodged with the court when
their contents become relevant to an issue in any pending matter in
the action.  The court shall grant leave to augment or amend an
expert witness list or declaration only after taking into account the
extent to which the opposing party has relied on the list of expert
witnesses, and after determining that any party opposing the motion
will not be prejudiced in maintaining that party's action or defense
on the merits, and that the moving party either (1) would not in the
exercise of reasonable diligence have determined to call that expert
witness or have decided to offer the different or additional
testimony of that expert witness, or (2) failed to determine to call
that expert witness, or to offer the different or additional
testimony of that expert witness as a result of mistake,
inadvertence, surprise, or excusable neglect, provided that the
moving party (1) has sought leave to augment or amend promptly after
deciding to call the expert witness or to offer the different or
additional testimony, and (2) has promptly thereafter served a copy
of the proposed expert witness information concerning the expert or
the testimony described in subdivision (f) on all other parties who
have appeared in the action.  Leave shall be conditioned on the
moving party making the expert available immediately for a deposition
under subdivision (i), and on such other terms as may be just,
including, but not limited to, leave to any party opposing the motion
to designate additional expert witnesses or to elicit additional
opinions from those previously designated, a continuance of the trial
for a reasonable period of time, and the awarding of costs and
litigation expenses to any party opposing the motion.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to augment or amend expert witness information,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances made the
imposition of the sanction unjust.
   (l) On motion of any party who has failed to submit expert witness
information on the date specified in a demand for that exchange, the
court may grant leave to submit that information on a later date.
This motion shall be made a sufficient time in advance of the time
limit for the completion of discovery under Section 2024 to permit
the deposition of any expert to whom the motion relates to be taken
within that time limit.  However, under exceptional circumstances,
the court may permit the motion to be made at a later time. This
motion shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion.
   The court shall grant leave to submit tardy expert witness
information only after taking into account the extent to which the
opposing party has relied on the absence of a list of expert
witnesses, and determining that any party opposing the motion will
not be prejudiced in maintaining that party's action or defense on
the merits, and that the moving party (1) failed to submit that
information as the result of mistake, inadvertence, surprise, or
excusable neglect, (2) sought that leave promptly after learning of
the mistake, inadvertence, surprise, or excusable neglect, and (3)
has promptly thereafter served a copy of the proposed expert witness
information described in subdivision (f) on all other parties who
have appeared in the action.  This order shall be conditioned on the
moving party making that expert available immediately for a
deposition under subdivision (i), and on such other terms as may be
just, including, but not limited to, leave to any party opposing the
motion to designate additional expert witnesses or to elicit
additional opinions from those previously designated, a continuance
of the trial for a reasonable period of time, and the awarding of
costs and litigation expenses to any party opposing the motion.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to submit tardy expert witness information, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
   (m) A party may call as a witness at trial an expert not
previously designated by that party if:  (1) that expert has been
designated by another party and has thereafter been deposed under
subdivision (i), or (2) that expert is called as a witness to impeach
the testimony of an expert witness offered by any other party at the
trial.  This impeachment may include testimony to the falsity or
nonexistence of any fact used as the foundation for any opinion by
any other party's expert witness, but may not include testimony that
contradicts the opinion.
   (n) The demand for an exchange of information concerning expert
trial witnesses, and any expert witness lists and declarations
exchanged shall not be filed with the court.  The party demanding the
exchange shall retain both the original of the demand, with the
original proof of service affixed, and the original of all expert
witness lists and declarations exchanged in response to the demand
until six months after final disposition of the action.  At that
time, all originals may be destroyed unless the court, on motion of
any party and for good cause shown, orders that the originals be
preserved for a longer period.

 


California Discovery Primary Table of Contents
California Discovery Forms: Form Interrogatories and Request for Admissions mmm
Special Interrogatories: Sample Special Interrogatories: Agreement:   
California Discovery: 1986 Discovery Act Code Provisions: Table of Contents        
California Discovery Introduction Table of Contents  
Direct Link To Discovery Act Code Sections-Official Site
California Code of Civil Procedure-Article 3-Discovery-2016-2036-Official Site

 



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