Dealing with draft dodgers: Automatic production of drafts of expert witness reports

I. INTRODUCTION

As defense counsel in a slip-and-fall case, you are deposing the plaintiff's key expert witness, his physician. You are suspicious of the doctor's testimony from the start, because what began fifteen months ago as complaints of shoulder problems by the plaintiff have now developed into low back pain and leg difficulties. Plaintiffs counsel cancelled the doctor's prior deposition, claiming that the doctor was not prepared to testify because of gaps in his medical file. In a new report, served seven days before the second scheduled deposition, the doctor now opines that the plaintiff's lumbar disc problems were caused by the accident at issue.

At the deposition you discover something interesting in the file: a draft of the opinion letter that is not on the doctor's letterhead. Interestingly, it mirrors the doctor's final report aside from one discrepancy. That discrepancy is the inclusion of the following note at the top of the draft report: "PLEASE HAVE RETYPED ON YOUR OWN STATIONARY. THANK YOU."1