The rules of discovery were designed to avoid "trial by ambush" by requiring full disclosure--even if the discovery of evidence that might not be admissible at trial--says attorney Jonathan Dunitz, leading off today's BVR session on discovery and evidence in damages litigation.
The result can be overly broad discovery requests, since the standard is simply that discovery appears reasonably calculated to lead to the discovery of admissable evidence (quoting the Federal Rules of Civil Procedure 23(b) (1). "What's important is that the appraiser describes clearly what he or she needs to the lawyer prior to discovery," says Dunitz--or you can find yourself in the uncomfortable situation of trying to describe what you need to the judge. And these explanations subject you to cross-examination.
"Depositions are my favorite discovery advice because you can question the witness live," said Dunitz. This allows him to see how liable and credible a witness may be, and to "assess how the witness may influence the judge and/or jury."
Don't get excluded. Appraisers need to be careful to not get exposed to motions to exclude at this point in the discovery process. Dunitz likes to ask financial experts "would you have done this approach the same way if this wasn't in litigation?" If the answer is yes, then he has a basis to exclude the opposing expert.
The expert can also help by telling the attorney what categories of information they need during any corporate depositions. "Appraisers should read the initial complaint, of course, but if we've asked the right questions we can get the full story from the depositions, added Nancy Fannon, co-presenter of today's session. "Often, the number in the stories don't add up."