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Re: Depositions

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Something not made clear in the description of the structural report
"written for the plaintiff" is whether the report was made for the purpose
of furthering litigation already initiated, or as a basis for initiating
litigation, or for informing the plaintiff about a disputed engineering
situation for which resolution through litigation was at the time a
forseeable option ...or what.

It is my understanding that if litigation involving matters addressed in the
engineering report was already initiated, then the report is "privileged" in
California under Civil Code section 47(b) as expert opinion. 

My source is a discussion paper originating with a certain San Francisco law
firm. This paper cited several state appellate court decisions, and it
expressed the view that even if the engineering opinions were rendered
before a lawsuit was filed, if litigation was either being openly considered
or if litigation were merely forseeable over matters the report dealt with,
then the report is "probably" privileged, especially after litigation is
initiated. And this was the same whether the report was rendered to the
party directly, or to the party's attorney.

In the above contexts, "privileged" apparently means the engineer consultant
may not be sued or otherwise made vulnerable (or disciplined by the
engineers licensing board) for the opinions expressed or for the quality of
care that went into their preparation. 

But it also seems to me that engineering opinions rendered under these
circumstances necessarily are expert opinions subject to expert testimony
fees if the engineer is deposed and questioned on them. If so, then for the
witness fee question at hand, the circumstances surrounding the report's
preparation and purposes would be important.

Recently I was deposed in connection with a report I made for an attorney
already litigating. Certainly I was a "percipient" witness as to the many
questions about what I did and when I did it, and about prospective repair
details I designed, but I was also asked for lots of engineering opinions
during the same deposition. All of it was paid for cheerfully at the expert
testimony rate.    

Charles O. Greenlaw, SE    Sacramento CA

At 02:15 PM 8/12/98 EDT, you wrote:
>I have been subpoenaed, by the defendant, in a civil case as a precipient
>witness (not an expert) in a lawsuit of an individual (plaintiff) vs an
>insurance company (defendant).I assume our testimony will be in regard to a
>structural report we wrote for the plaintiff regarding their residence. My
>questions, to those with similar experience,are:
>1) What is the distinction in our testimony as a precipient witness vs as an
>2) A $45 check was included with the subpoena as a statutory fee.This hardly
>covers the cost of parking & travel.Can we demand additional compensation?
>Thank you beforehand,
>Sincerely , R Arevalo