From the plaintiff’s perspective, there are many cases in which the lawsuit needs to be prosecuted in an economically feasible manner both time wise and financially if pursuing the lawsuit is going to be worthwhile. This can be accomplished by deposing expert witnesses via the telephone pursuant to K.S.A. 60-230 (b)(6). Taking a telephone deposition avoids the expenditure of travel time, airline ticket expense, hotel expense, cab fare, etc. Since the Kansas statute clearly provides for this method of deposition, opposing counsel rarely objects. Since most phones now have two-way speaker capabilities, telephone depositions can be easily arranged most anywhere.
The process is simple. The deposition notice should indicate that the deposition is being taken via the telephone, with the phone number and place of the deposition being specified in the notice. A court reporter needs to be present with the witness in a room where a speaker phone is being utilized. If deposing counsel desires that the expert witness be shown certain exhibits, these exhibits can be individually numbered well before the deposition, scanned, and emailed to the court reporter. The court reporter can put the numbered exhibits in an envelope and bring the envelope to the deposition. When the deposing lawyer requests the court reporter show a previously numbered exhibit to the deponent, the court reporter removes the exhibit from the envelope and shows the exhibit to the deponent. This allows the deposing lawyer to examine the witness about that exhibit in the same way as if the deposing lawyer was present in person at the deposition.
Even though the deposing lawyer does not attend the expert’s deposition in person, the deposing lawyer can still look at the expert witnesses’ files. This can be accomplished by the deposing lawyer having sent a request for production months prior requesting a copy of the entire file of each expert the opposing party eventually discloses. Shortly before opposing counsel’s expert disclosure deadline arrives, deposing counsel can send an email reminding opposing counsel that production of a copy of the experts’ files are due on the date of the expert disclosure deadline. A copy of all of the experts’ files can then be timely produced to deposing counsel for review well in advance of the phone deposition. Any specific document in the expert’s file that is going to be the subject of inquiry can be scanned and emailed to the court reporter in advance of the deposition.
When you are simply exploring the opinions of experts, you should seriously consider saving the time and expense of travel. It not only saves you time and money, it saves your client money in the long run.
