I am sorry I've not been able to post the PDF for some reason. I have just clipped portions instead. Zahau attorneys argued to oppose Adam Shacknai's request for early disclosure of expert witness materials. The court sided with Adam so looks like they are going forward with early expert witness disclosures. ROA 348 is a quick summary of Zahau attorneys arguments against it.
ROA 348 - PLAINTIFFS OPPOSITION TO EX PARTE APPLICATION OF DEFENDANT ADAM SHACKNAI FOR ORDER SHORTENING TIME FOR MOTION FOR EARLY DISCLOSURE OF EXPERT WITNESS MATERIALS
Plaintiffs submit this Memorandum of Points and Authorities in Opposition to the Ex Parte Application of Defendant Adam Shacknai for an Order Shortening Time for Service of a Motion to Require Early Disclosure of Expert Witness Information in this action. Plaintiffs Oppose the Application on the grounds that Defendant has failed to show good cause as required in order to shorten time in that Defendant is unable to point to any specific prejudice beyond allegedly being forced "to continue litigating without any knowledge regarding the basis for the allegations." (Ex Parte at pp. 1, 4). In asserting this position, Defendant ignores the myriad discovery tools designed to elicit opposing parties' contentions, such as Interrogatories and Requests for Admissions, and instead asserts that this ex parte application is necessitated because Plaintiffs themselves, who were not present at the time of the decedent's death, do not have any personal knowledge of the facts and circumstances of the events leading to the death. Indeed this is, in substantial part, a circumstantial case and this court recognized this fact in its March 1 1, 2016 Order overruling demurrers at p. 4. (" Under these circumstances, plaintiffs have to rely on circumstantial evidence.").
However, merely because the Plaintiffs themselves do not have direct knowledge of the facts and circumstances of the death is no reason to simply skip over factual discovery and go straight to expert testimony, and certainly not on an ex parte basis. There is substantial need for factual discovery to substantiate material contained in the police investigative file and also to identify and develop further admissible evidentiary support for what will necessarily be something of a circumstantial case. Merely because "there is no party discovery that defendants can do to uncover the basis for the allegations,, (Ex Parte at p. 5) does not mean there is no discovery to be sought from non parties. Moreover, while to date the documentary evidence available to Plaintiffs has come primarily from the law enforcement investigative materials, this actually serves to highlight exactly why Plaintiffs need extensive third party discovery to secure such evidence in admissible form from admissible sources and also to pursue investigative leads that may not have been properly pursued by law enforcement.
Moreover, requiring early disclosure of expert materials would lead to experts being required to formulate their opinions on the basis of incomplete materials leading to prejudice to plaintiffs and severe litigation inefficiencies. "[T]he Legislature appears to have anticipated that experts would continue their preparations after the specified date [for exchange of expert information]." Boston v. Penny Lane Centers, Inc., 170 Cal. App. 4th 936, 952 (2009). The logical consequence of requiring such an exchange prematurely prior to substantial development of factual discovery is that expert opinions will continue to be supplemented and amended leading to multiple depositions of the same expert at substantial expense to the parties. Moreover, until factual discovery has proceeded to a more advanced stage, Plaintiffs are unable to know precisely what areas may require expert testimony. Thus, Plaintiffs would be prejudiced by requiring early disclosure - or by making an early decision on early disclosure.
lease: