Steven Babitsky, Esq.

The U.S. District Court, New Mexico, dealt with a request to depose an expert witness twice; once after his report and once after his rebuttal report.

The court denied the motion for a protective order and permitted a limited second deposition. The court stated:

Here, the Court finds that WALH has failed to show good cause for the protective order it seeks, whereas Plaintiff has shown good cause to depose Mr. Godfrey twice. According to its response, Plaintiff wishes to depose Mr. Godfrey regarding his case-in-chief report in advance of the April 20, 2020 deadline for the parties to exchange rebuttal reports, so that Plaintiff’s expert can use Mr. Godfrey’s deposition to prepare a rebuttal report. (Doc. 59 at 2-3.) Plaintiff then wishes to depose Mr. Godfrey again after April 20, 2020, to ask him about his rebuttal report. (Id. at 1-3, 12.) Plaintiff convincingly explains that Mr. Godfrey’s rebuttal report is likely to be significantly different from his case-in-chief report, and affirmatively states that it does not intend to use its second deposition to ask Mr. Godfrey about his case-in-chief report. (Id. at 4-6, 11.) The Court therefore finds that the two depositions are relevant to the parties’ claims and defenses, proportional to the needs of the case, and unlikely to be cumulative or duplicative.


WALH also argues that Plaintiff deposing Mr. Godfrey twice will place a “significant burden” on it, because WALH’s attorney fees “will increase significantly if it is required to defend a second expert deposition,” and “Mr. Godfrey’s preparation time . . . will also increase as he has to prepare twice to address the valuation issues in the case.” (Id. at 6.) It is true that, if Plaintiff were to depose Mr. Godfrey twice about the same subjects, it would unreasonably increase WALH’s attorney fees and costs. However, this is not what Plaintiff is proposing to do. Rather, Plaintiff is proposing to depose Mr. Godfrey once about his case-in-chief report, and once about his rebuttal report. Plaintiff is clearly entitled to depose Mr. Godfrey about both reports; and, whether it does so on one occasion or two should make little difference to the parties’ expenditures as long as Plaintiff does not ask duplicative questions. Either way Mr. Godfrey must prepare to answer, and counsel to ask and object to, questions about both reports. And, if the parties schedule Mr. Godfrey’s second deposition for shortly after he issues his rebuttal report, when it is still fresh in his mind, he should not need to engage in much if any duplicative preparation.

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