Experts are affected by discovery in two distinct ways:
- The expert can be an important source of information for the state and the retaining attorney to gather data to support the case.
- The expert's lab testing, procedure, results and conclusions may be the subject of discovery by opposing counsel.
It is important to distinguish the discovery process from the expert's usual testing or technical information-gathering procedures. The expert's evidence testing is undertaken by following customary and routine lab protocols and procedures and the scientific method. The expert proceeds step-by-step, in an orderly and logical way, to obtain the test results, facts and information on which the expert will base the expert conclusion.
Discovery, on the other hand, is structured and driven by time deadlines imposed by the court or by procedural rules. Each item of discovery is undertaken in a set manner, with or without court intervention, by attorneys representing the parties in dispute. The fundamental distinction between the discovery process and the expert's inquiry is that the discovery process is ultimately subject to the court's supervision.
If the assignment is court-oriented, the expert may play an important role in pleadings and discovery preparation. He may be called on to draft technical parts of a pleading and also review discovery requests and responses for completeness and technical consistency. In some cases, the expert can help uncover a body of technical data, forms, procedures, protocol, notes or research materials.
It is often essential that the expert participates at the discovery stage to ensure that requisite technical materials are available before deposition and to assist in reducing the costs of discovery.
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