 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Arizona Minority Coalition For Fair Redistricting v. Arizona Independent Redistricting Commission10/21/2005
to disclosure related to the new designation. See, e.g., Mantolete v. Bolger, 96 F.R.D. 179, 182 (1982). In Mantolete, the court reasoned that when a defendant changed its expert's designation from "testifying expert" to "non-testifying" expert under Rule 26(b)(4) of the Federal Rules of Civil Procedure, discovery by plaintiff was limited to the restrictions set forth for non-testifying experts. Id. The court rejected the plaintiff's argument that the redesignation of the witness was simply a way to avoid discovery and thus a gross abuse of the federal rules. Id. at 182 n.2. Instead, the court opined that the "defendant is permitted to execute the trial strategy it deems appropriate to defend its case; this extends to changing the status of an expert, which thereby narrows the scope of discovery." Id. (citing Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 13-14 (N.D. Ill. 1972)).
We agree with the analysis in Mantolete. The Commission was entitled to change Johnson's designation, which in turn limited the opposing parties' right to discovery related to Johnson's new designation as a fact witness, thereby preserving the applicable legislative privilege.
Notwithstanding the retention of its privilege, the Commission produced apparently privileged documents without first providing the documents to the trial court for an in camera inspection. The Coalition contends that the Commission's release of the documents was "voluntary" because it was not in strict accordance with the trial court's directive. It therefore reasons that the Commission has waived its opposition to the disclosure of privileged documents. We disagree.
The Commission strenuously protested the release of these documents before and during trial, and even pursued a special action in this court contesting such disclosure. After the conclusion of the special action, the trial court ruled that the Commission had waived the legislative privilege protecting communications between it and Johnson regardless of his new status as a fact witness. Thus, an in camera inspection of documents reflecting communications between the Commission and Johnson would not have shielded these documents from production, as the Commission likely realized. In light of these circumstances, we cannot view the Commission's production of privileged documents without the in camera inspection as a voluntary waiver of the legislative privilege. Rather, it is clear that the Commission believed it was compelled to disclose any documents that related to Johnson's testimony.
Of course, when an expert is redesignated as a fact witness, the privilege remains in effect only for so long as the witness does not testify or testifies only as a fact witness. The privilege is waived, however, and the expert-based documents become discoverable, when the fact witness is redesignated as an expert witness, and will testify as such. It is also waived to the extent that trial testimony exceeds the fact-witness designation.
Accordingly, we hold that the trial court erred in ruling that the mere act of designating a consultant as a testifying expert witness permanently waived the legislative privilege. On remand, the trial court should apply the principles set forth herein. To the extent the parties cannot agree on which documents are privileged, the trial court shall conduct an in camera inspection in order to determine the application of the privilege. In the event of a re-trial, and in the event Johnson's testimony strays into the realm of expert testimony, any documents relevant to such expanded testimony will be subject to disclosure. See Link, 193 Ariz. at 338, 972 P.2d at 671.
3. Use of Personal Knowledge and Experience
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|