Page 23 - Expert Witness

 Basis for the expert witness opinions (required). In combination with work performed, a descrip-
tion of the fundamental principles used completes the requirement to report the basis and reasons
for the expert witness’s opinions.

 Opinions of the expert witness (required). The practitioner must report the opinions to be ex-
pressed by testimony at the trial.

 Data or other information considered (required). Disclosure of materials considered by the prac-
titioner in reaching opinions and preparing the expert report. This includes documents and data
produced by the parties during the litigation, as well as research and other materials independent-
ly prepared by the practitioner.

 Exhibits to be used by the expert witness (required). Describe the expert witness’s scientific,
technical, or other specialized knowledge believed to enable the witness to assist the trier of fact
in understanding the evidence or determine a fact in issue. The practitioner should focus on the
following qualifications:

a. Publications authored for the last 10 years

b. Previous Testimony

c. Compensation (see Rule 702 of the Federal Rules of Evidence in appendix E)

Data and Documents Considered and Work Product

Related to the reporting of data and documents considered, the practitioner should discuss the documen-
tation requirement with the client’s attorney to ensure proper compliance. In some cases, the understand-
ing is that materials received by the expert witness should be disclosed. In other cases, the disclosure is
limited to only those materials received, read, considered, and used to reach the expert witness’s opin-
ions.

In connection with the required reporting of data and documents considered, the practitioner should be-
come familiar with evidence considerations, such as the standard of proof, admissibility, and chain of
custody, because these matters may affect the reliance and weight given to certain information consid-
ered by the expert witness. In addition, the practitioner is reminded that the materials considered or pre-
pared by the expert witness are generally discoverable and cannot be protected from discovery by legal
privilege.

Therefore, the practitioner must exercise diligence to retain materials provided to or prepared by him or
her during the litigation. The practitioner also must preserve the metadata generated in connection with
ESI. This may be facilitated by a disciplined approach to receiving, inventorying, securing, and main-
taining materials received or prepared during the litigation support engagement. For example, a bates-
stamp is commonly used to control the dissemination of documents to the expert witness. The failure to
properly preserve and disclose expert witness materials may result in unfavorable rulings, sanctions, and
other adverse consequences.

Expert Witness Opinions

In federal court, the expert witness’s opinion must comply with the Federal Rule of Evidence in order to
be presented by the practitioner at the trial (see appendix E). Failure to comply may result in disqualifi-

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