This issue of The Expert Advisor contains valuable advice from two Round Table Group experts with vast experience in e-discovery and 3D exhibits. Our Featured Expert, Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, explains how to use the 2006 e‑discovery amendments to the Federal Rules of Civil Procedure to your advantage. 

An article authored by Jeff Drake, principal of Drake Exhibits, explains how 3D exhibits can document and demonstrate the physical aspects of cases involving a variety of catastrophic events. He details the ways in which a Demonstrative Evidence Specialist works in tandem with the legal/expert team to create a visual strategy for use in presenting a case.

A third article discusses a recent federal district court order in a patent infringement case striking out those portions of an expert witness's report that were based on secret government studies.

The Expert Advisor is dedicated to providing our readers with assistance in locating, preparing, and utilizing experts. Please send your ideas for upcoming themes or articles to mswansiger@roundtablegroup.com.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc

The expert's work for LANS dealt with homeland protection and national security. Consequently, his use of government property was severely restricted, and he could not use work-related data in connection with this case. Moreover, he was barred from producing any LANL documents for use in the litigation.

Basing her decision on fundamental principles of fairness, the judge pointed out that confidential data cannot be used "as both a shield and a sword." The expert, who was precluded from sharing his work with the litigants, could not rely on his recollection of that work product in the lawsuit because "there clearly was no principled way to test his recollection and opinion."

Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, has been on Round Table Group's list of experts since 2005. She is the founder and CEO of Electronic Evidence Retrieval, L.L.C.,[1] a full-service computer forensic and e-discovery firm that provides litigation support from initial case investigation, through discovery, and into trial.  Dr. Hassell is a highly acclaimed national speaker on e-discovery and computer forensics.

In this article, Dr. Hassell explains how to thread the e-discovery maze created by Rules 26-37, Federal Rules of Civil Procedure.

You Know You Need E-Discovery Help When ...

• You believe the other side is not giving you all that you are entitled to
• You know the opposition has a massive information infrastructure and you want to prevent them from burying you in discovery production  
• You have proof that the other side has not produced everything
• You have just received a production of 50,000 e-mails and 500,000 documents

Have any of these circumstances occurred in your practice? Or in the practice of anyone you know? The 2006 e‑discovery amendments to the Federal Rules of Civil Procedure place powerful tactics in the hands of litigators, tactics that you can use to address each of these issues, and many others.

Here's how e-discovery and computer forensic consultants and experts can help you when you encounter any of these situations.

You Believe They Are Not Giving You All That You Are Entitled To

You have requested the production of e-mail communications between two relevant parties. After much stalling, the other side produced a few printed e-mails, saying that's all they have. You suspect that many more messages exist. In a 30.b.6 deposition, you ask the deponent how she communicates with her secretary, particularly when she is traveling. She replies, "We use e-mail." You follow up with questions about e-mail servers and document retention and destruction policies, perhaps reminding the deponent about the serious sanctions (such as $1.6 billion) imposed for deleting and not producing relevant e-mails.

What are your options when the other side continues to resist? You can go to the court and get an order that the e-mails be produced, which often results in only a few more messages. Or, as I recommend, you can obtain an order allowing an e-discovery expert to examine the opposing side's computers and servers, and search for existing and deleted e-mails responsive to your request. If you take the latter tactic, you'll meet resistance in the form of claims of privilege, confidential information, trade secrets, copyrights, and so on. Fortunately, there is a viable solution to this problem. The e-discovery expert can extract e-mails and other materials that satisfy your selection criteria and provide a copy to the opposing party for review. The opposition would then produce responsive, non-privileged results and provide you with a privilege/redaction log. The e-discovery expert, of course, would retain the original materials and log--just to keep everything honest.

You Know the Opposition Has a Massive Information Infrastructure and You Want to Prevent Them from Burying You in Discovery Production

The opposition is large, perhaps multinational. You know there is going to be a lot of discovery produced, perhaps thousands of boxes of paper documents. In one of my cases (before enactment of the e-discovery amendments), the defendant produced 8,000 e-mails; however, he generated them "electronically" by printing and then scanning them into a fax-like format. The scanned files could not be searched for recipients, subjects, key words, or other criteria. To review an e-mail, someone had to open each file, read it, and enter it into a document-tracking system.

This is the type of situation in which having an experienced e-discovery expert on your team really pays off. The amendments call for very early discussions of e-discovery, specifically directing attorneys to address the form of electronically stored information (ESI) production at the Rule 26 "Meet and Confer." Furthermore, counsel are directed to produce a list of persons with custody and control of ESI and a list, "by location and category," of all the ESI they expect to rely on in their case--and to produce this list at least 21 days before the Rule 26 conference. You need to be ready by knowing all that the amendments allow in e-discovery.

Specifying the Form of Production

As a default, the e-discovery amendments provide for the production of electronic documents in the form in which they are normally kept and used. The amendments also give you the right to request the form in which the results are to be produced; thus, your first step in protecting against the paper blizzard is to inform opposing counsel that you will request electronic production. Each discovery request should specify the form in which it should be produced. I usually suggest native form--the form in which the documents or information was originally created and stored.  Courts have been inconsistent, but at least one (Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc.) held that if you did not initially request the production in electronic form, you cannot go back and obtain it in electronic form after it was produced in a reasonably useful, albeit paper, form.

If you are the producer and the requester did not specify the form, the amendments require you to describe the form you will use. In contrast to Autotech, another court (White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc.) required the producer to produce e-mails a second time, in electronic form, after producing only printed e-mails in the first production.

The amendments specifically state that if the producing party can search the documents, the receiving side must also have that ability. They also allow native format to be converted into some "reasonably usable" form. In my case with the 8,000 e-mails, after I complained about the form of the initial delivery, the next production came in a specialized .pdf format that was not searchable. You can thwart this type of obstructionist tactic by stating in your request that any searchability in the original format must be maintained.

I believe that such searchability is important in discovery management. If documents can be searched, they can be electronically analyzed and organized, thereby reducing your time and your client's costs. I will discuss some specific electronic analysis later in this article.

Formulating Your Request for Production

Your second chance at preventing an over-inclusive production lies in carefully crafting selection criteria in your discovery request. Attorneys used to request "all documents relating to the contract between...." People went through their files and pulled what seemed to be responsive. Now, because of the sheer volume of ESI, we want to use electronic tools to identify responsive electronic documents.

The challenge is in answering the question, "What criteria do the tools use?" Initially, we used simple search terms such as "All files containing any of the following words: MySecretSauce, Mr. Bad Guy, Big Competitor, Smith Contract." But that approach often yields too many or too few hits. If, for example, "MySecretSauce" appears in the company's e-mail banner, every corporate e-mail would yield a hit.  Furthermore, a search for "Smith Contract" may yield too many hits if Mr. Smith is a party to many contracts, most of them unrelated to your litigation. Also, an e-mail might refer to the Smith "matter," "agreement," or "issue," and never use the word "contract."

While there is no magic bullet in this situation, it is a good time to call in an experienced e-discovery consultant.

In recognition of these issues, judges are calling for collaboration between the parties in developing selection criteria and, importantly, testing those criteria. In fact, the e-discovery amendments specifically provide for such testing.

Some judges, for example Magistrate Judge John Facciola in U.S. v. O'Keefe and Equity Analytics v. Lundin and Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., are getting savvy about selection criteria, with Judge Grimm famously saying "all keyword searches are not created equal."

You Know That They Have Not Produced Everything

You have a copy of a relevant, responsive document or e-mail that the opposing side has not produced. You included search criteria in your production request that should have gotten a hit, but the item has not been produced.

This is another situation in which you need to call for a complete forensic examination of the opposition's computers and servers. As indicated earlier, such a request will probably be met with great resistance. But a forensic examination can recover a wealth of evidence not otherwise available, such as deleted files, file fragments that demonstrate the prior presence of files, attempts to thwart discovery by the use of secure overwriting software, and more.

You Have Just Received an Electronic Production of 50,000 E-Mails and 500,000 Documents

Your approach to reviewing this production may well depend on the size of the case. Consider two situations:

First, suppose you have a huge case involving hundreds of millions of dollars. There are well-known electronic e-discovery tools that process e-mails, attachments, and documents and allow you to view the data in many ways. They can identify e-mail conversations, shared documents, common-term usage and much, much more. Such tools can cost several hundred dollars per gigabyte for processing the discovery and may be cost-prohibitive for smaller cases. These tools are also valuable in the case-assessment phase to help attorneys understand the nature of their client's data.

Second, consider a case whose value does not justify an expenditure of the millions of dollars needed for the services described above. In such situations there are ways to significantly reduce the cost of analysis. Note that employees within a company frequently have multiple copies of the same documents and e-mails (each has his/her own copy of a document; each may have multiple versions of the same document, etc.). Thus, a first step in reducing the size of the production is to identify duplicate copies of the same information, a process known as deduping. Obviously, you only have to review a duplicate document once; however, the mere presence of a duplicate may be relevant to your case. For example, it may be of great interest that an unauthorized employee has a copy of a proprietary design document.

There is also an emerging technology that identifies near-duplicate documents. Near-duplicate documents are similar within a certain percentage threshold, such as two similar MS Word documents (the original and an edited version), or an e-mail and the response to that e-mail. Organizing electronic files into sets of near-duplicates reduces the time needed to review the documents and helps assure consistency in their analysis. It also provides insight into the evolution of documents and their various changes along a timeline. Typical charges for near-duplicate analysis are cents per document analyzed.

Because of forwarding, "cc:-ing," and replying, an e-mail collection has a more complex structure than a collection of other documents. E-mail thread analysis is used to organize e-mails into meaningful groups, such as a chain of e-mails in which each one contains its predecessor. Again, the reviewer saves time and gains consistency by reviewing a thread as an entity, rather than each e-mail individually. Attachments remain associated with their e-mail message, facilitating a "who-knew-what-when" analysis. An additional benefit is that missing e-mails can be identified, often leading, as it did in one of my cases, to the "smoking gun."  As with near-duplicate analysis, typical charges are cents per e-mail analyzed.

Summary

The e-discovery amendments address many more issues, some involving legal theory and others dealing with such practical concepts as metadata and information architectures.

This issue of The Expert Advisor contains valuable advice from two of Round Table Group's experts with vast experience in corporate and patent matters. First, our Featured Expert, Prof. Douglas M. Branson, a renowned authority on corporate governance and securities regulation, provides litigators with 10 tips for use in preparing expert witnesses prior to depositions and trial.

An article authored by Philip L. Brooks, Managing Member of Brooks Consulting LLC, brings an insider's perspective to patent-infringement investigations. Phil explains how methods of investigation have changed over the last decade and notes that important data can be obtained by attending trade shows, speaking with employees and industry experts, and conducting Web research.

A third article highlights the U.S. Supreme Court's recent ruling that limits the ability of patent holders to demand royalties from companies at each stage of the production process.

Round Table Group is dedicated to providing our readers with assistance in locating, preparing, and utilizing experts. Please send your ideas for upcoming themes or articles to mswansiger@roundtablegroup.com.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc.

The VP of Sales for your company just returned from the industry's top annual trade show in Las Vegas with bad news. In addition to manning the company's exhibit booth and meeting with clients in a private hotel suite, she took a quick spin around the trade show floor. To her dismay, she discovered that a company, which none of you had heard of, was demonstrating a device with features eerily similar to your most recently launched product. Although the VP had attempted to strike up a conversation with the person at the "new" competitor's booth, he clammed up when he saw the corporate logo on her nametag.

Now what...?

In 1998, Jeff Moore, then a law student at Franklin Pierce Law Center, conducted an informal survey of law firms and companies in which he posed two questions:

1.      "How does an inventor know whether his process or method patent is being infringed?"

2.      "Where can an inventor go to have his IP protected on an ongoing basis by monitoring for illegal use?"[2]

Moore's report included the following observations: 

"The offensive search for potential infringers is targeted at finding infringers that can be forced to license or pay damages. Once an infringer is located the patent and literature searches may still be required to defend the patent and encourage a settlement."

"Companies have mostly relied upon internal resources to keep up on technology and identify potential patent infringers. Employees know the business, the key players, the technology, and often spot competitors that are infringing on process patents."[3]

Mr. Moore's comment that internal employees know the market best and are usually a more efficient and effective source for tracking down potential infringers might have been true 10 years ago. However, in 2008, his rationale appears to apply only in a fraction of patent-infringement investigations. Indeed, many clients are not really focused on such monitoring activities in the normal course of business--they have too many other things to concentrate on. Outside experts with industry, product, or patent-infringement experience are able to access information sources that may not be available to internal employees. Remember how the trade-show booth attendant clammed up when he recognized a competitor? 

Nevertheless, corporate employees are critical to the process because they can provide the retained expert with valuable information regarding the company's products and the industry in general. They are also helpful in defining the ways in which the claims of the patent might manifest in the features of products that your company does not currently produce.

One of the valuable side effects of patent-infringement investigations is the ability to obtain competitive and market intelligence, beyond the evidence of potential infringement. This information provides your company with valuable data that can be used going forward in day-to-day business activities.

Today, the volume of information available to businesses is much richer than it was in the past. Pertinent data can be gathered by attending trade shows, speaking with such parties as former employees and industry experts, and conducting Web research. In 1998, many companies (even very large ones) often had fairly static Web sites that consisted of only a few pages of text. Today, businesses often maintain multiple Web sites that offer deep content, multimedia informational sources, and links to third-party sources that provide supplemental information. This trend toward increased availability of valuable information shows no sign of slowing.

Retained experts may provide a valuable service in assisting your counsel in determining the liability aspects of patent-infringement cases. Product searches and investigations to establish potential infringement of your company's patent portfolio are conducted by:  

• Identifying businesses in your company's market and nearby markets
• Investigating companies and/or products that potentially infringe your patent portfolio using a detailed methodology, incorporating the latest Web-search technologies
• Identifying products of these businesses with features/functionality that potentially infringe upon your patents' claims



• Legally collecting documentation of this potential infringement
• Obtaining brochures, white papers, user's manuals, press releases, product reviews, financial filings, and other product or corporate document
• Developing questionnaires in conjunction with counsel to elicit information, through interviews and/or Web demos, that is relevant to the patent claim
• Attending trade shows and industry conferences in order to obtain product information
• Acquiring products for further technical evaluation

In "Patent Searching an Effective Tool for Competitive Intelligence," author Vinod Singh makes a very good case for why patent searching should be left to the experts--professional patent searchers.[4]   He discusses detailed steps--at least 13--that he considers essential for a complete search. He also points out that a skilled searcher should possess knowledge of search procedures, database limitations, technical tools, and software.

An early step in Mr. Singh's search process involves recordkeeping. He recommends that interested parties "[r]ecord the search words on a page in a project notebook and add other words as they come to mind or encounter them in other patents. Usually the word list becomes separated into groups of words covering different aspects of the invention."

This is excellent advice. When using search tools, you may end up following a number of different and often convoluted paths. Documentation of the keywords is essential to enable the researcher to explore all avenues and to revisit pertinent URLs using other search engines and/or tools. Moreover, the terminology used with respect to certain products or technologies often varies significantly in different parts of the world. Sometimes the variation may be as subtle as the use of acronyms, rather than complete word descriptions.

Also, while your company may rely on certain keywords to describe an invention, an expert may know that other members of the industry use a variety of keywords. In some cases, the infringement may occur in industries with which your company currently does no business. The expert's knowledge of the keywords applicable to other industries may lead to the detection of infringing products that your internal team would never discover. It is important to make sure that all relevant keywords are incorporated in your search--individually and in different combinations.

Back to the trade show...

Attendance at trade shows is a valuable tool in the expert's arsenal.  In the course of my patent-infringement investigations, I have uncovered some amazing details on products at trade shows.  Presented below are just a few of the insights I have gleaned over the past 12 years:

•  In addition to obtaining informational product brochures and white papers, attendees have access to demonstrations, cutaways, or components of products. Moreover, although the practice is not widespread, some visitors take digital pictures of booths and products. Thus far, I have not personally observed exhibitors discouraging people from taking pictures. [5]
• Salespersons are often more open to discussing product details in person than they might be over the phone.
• Conversations with other attendees can be a great source of information.
• Examining the exhibitor list before the show begins enables you to maximize the time spent at the show and to check out all companies that are of interest to you. In one trade show visit, my primary focus was on a specific company and its customers' booths. However, while reading the materials ahead of time, I noticed several businesses that were competitors to my target company, and I decided to stop by their booths. During the course of that show, I discovered eight to 10 competitors that had the potential of infringing upon my client's patents, and I subsequently shifted my primary focus to those entities.

Be sure to consider the role that an expert can play in your next patent investigation. You may derive significant value by retaining an expert to develop an ongoing infringement-monitoring program to protect your company's patent portfolio on a long-term basis. Having invested in the patents, you realize their true value only when you enforce those patents or seek out potential licensees.

This Top 10 presentation, á la David Letterman, is a valuable checklist for litigators to follow:

10.  Make sure that your experts minimize the number of written drafts by editing their work product electronically whenever possible. In this way, the opposition will be unable to call attention to differences in drafts, changes in wording, and so on in an attempt to waste precious deposition time trying to make your witnesses look bad.

9.    Direct your experts to honestly relate their credentials or experience. Any good lawyer will detect embellishments and portray the witness as untruthful at trial. Knowledgeable, but inexperienced, witnesses will quickly build up experience; exaggeration of their qualifications is unacceptable.

8.    Caution your witnesses to remain calm and cool, regardless of potentially abusive conduct on the part of the opposition. 

7.    Tell your experts that although a sense of humor is acceptable at a deposition, they should never be flippant or sarcastic. Direct them to be pleasant, answer the questions, and go no further; it's not their place to argue with the opposition.

6.    Understand that experts, after repeated provocation, may push back with a show of anger against the opposition. Advise your witnesses to revert to calm and cool as quickly as possible after an outburst. Although the ostensible reason for discovery is to produce information, many lawyers are bullies who pride themselves on their ability to intimidate and embarrass. Occasionally, witnesses have to show their tormenters that they are made of firm stuff.

5.    Clarify that it is not the experts' job to win the case for your side; they are merely cogs in a wheel. Make sure that your witnesses have a well-defined role in the proceedings and that they stick to that role.

4.    Advise your experts that you will steadfastly defend them in the proceedings. Reassure them that you will request recesses when it appears to be necessary or ask that the proceedings end for the day if they seem to be tiring. Make it clear that you will be actively representing them and will stick up for them whenever possible.

3.    Direct your experts to be modest, but to push the envelope on their opinions to the extent possible. Discuss tactics before the deposition.

2.    Coach your experts to be effective teachers when testifying at depositions or in court. They must explain things in clear and simple terms and provide the jury with a comfort level in a field that is otherwise alien to them. This may be their highest and best use in the litigation.

1.    Finally, work with your experts to ensure that they will clearly present their opinions. Advise them to remain strong, stay firm on what they agreed to say, and stick to it. There is nothing worse than a wishy-washy expert witness.

When screening possible experts, attorneys should look for witnesses with firm opinions and insight into how they can aid in the development of the case. If they lack familiarity with an area or sub-area, they should tell you outright, rather than "faking it until they make it."

Using an expert who has done exactly what your case entails (for example, a proxy contest at a large bank or an IPO for a biotech company) may be counterproductive because many parties with personal experience in a given area may not want to be witnesses or experts for your side. You're better off finding somebody who has a good overall experience level and is honest with you, rather than someone who is second rate but "spot on."

Our Featured Expert, Prof. Branson, graduated cum laude from Northwestern University School of Law and later pursued a Master of Laws at the University of Virginia, where he specialized in corporate and securities law and finished first in his class. After teaching for 22 years at Seattle University, he was recruited by the University of Pittsburgh in 1996. He authored the first U.S. treatise on corporate governance,[2] as well as 10 books on corporate law.[3]  He wrote numerous law review articles for prestigious legal periodicals in the United States, Europe, Singapore, Hong Kong, and Australia. Doug is generally considered to be among the top U.S. scholars on corporate governance and securities regulation.

1.    Computer scientists.

They examine computer systems, Internet protocols, software source code and operating systems--and earn an average of $425 per hour, according to Round Table Group data.

"They're the most in demand, and the stakes involved in these cases are a lot higher," says Zafran, "so they feel that their rates can be higher."

2.    Biomechanical engineers.

These experts review cases dealing with medical devices like heart valves and stents and earn an average of $386 per hour. "It's a very big area now, especially for us," says Zafran.

3.    Electrical engineers.

They consult on cases that involve electrical devices, among them circuit boards, semiconductors and electronic power systems. These experts earn an average of $353 per hour, according to RTG data.

4.    Mechanical engineers.

Cases typically involve mechanical devices such as pulley systems or automotive components, and engineers earn an average of $291 per hour.

•    Billing rates should start moderating.

Expect expert witnesses' rates to stabilize or even drop slightly, says Zafran. The main reason? "Competition for jobs," he says. "That's going to keep rates where they are or bring them down a bit, across all categories, except maybe very high-end surgeons with specific expertise."

•    Lending experts will be in demand.

More litigation surrounding mortgage lending should surface in the near future, says Zafran. "Experts who at one time worked in high-level lending positions are going to be fairly high in demand," he says.

Narrow your search to your geographical area if:

Having someone closer to the scene would be an advantage.

"If it's an engineering case, the expert may want to look at a bridge or building in person instead of relying on pictures," Yoho says.

Juries in your state prefer hometown experts.

"Some jurors perceive expert witnesses from different locations as condescending," says Round Table Group's Phil Davis. "If you choose expert witnesses with local flavor, the juries may relate to them better."

Rules require that expert witnesses are from your region.

"A law in Tennessee states that you have to be a resident of Tennessee, or a contiguous state, if you're going to testify," says Yoho.

"There are also instances where the expert witness needs to have a state's professional engineering license to understand the regulations of a case."

Search for your expert nationwide if:

There's no concrete reason why the expert would have to be local.

"The vast majority of expert witness' work gets accomplished in their own offices," says Yoho. "If they need to go on location, the cost is of no consequence in the long run, considering how inexpensive it is to fly nowadays."

You seek someone with credentials from a notable university.

"In a medical malpractice case, a jury might like someone from Johns Hopkins better than just a local hospital," says Yoho.

With this issue, we continue our examination of billing rates. Number one on Round Table Group's list of most expensive expert witnesses: doctors.

Our Medical Expert Witness Billing Rates article de-mystifies the criteria for the top five requested specialist categories. Make sure you get the best possible medical expert for your case--for the right price--by comparing your budget to our statistics.

Then, take a look at 4 Ways to Avoid Spoliation With Expert Witnesses. Document spoliation could result in preclusion of testimony--or worse. By knowing the expert witness' role in spoliation prevention, you have a leg up on the other side.

Please let me know if you have any ideas for upcoming themes or articles. Email me with your comments. As always, our mission is to provide readers with an edge in locating, preparing and utilizing experts.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc.

You need a physician to testify as an expert witness in an upcoming trial, but not all doctors charge the same hourly rate. Will you know enough about your expert's specialized field to be able to negotiate her fee?

Round Table Group (RTG) can help. It has determined which specialists are most often requested and what they charge per hour, on average, based on RTG's client-expert pairings from 2006 and 2007.

"Doctors rank number one as far as what our expert witnesses charge," says Round Table Group's Nick Zafran, who has been researching and compiling the company's billing data.

"The average hourly rate for doctors is $551. Practically all of the doctors are specialists, since they're needed more often than general practicing doctors."

For billing insights, review the following details about the Round Table Group's top-five most requested physician-specialist categories:

1. Surgeons

These doctors are requested most frequently by RTG clients. Surgeons are almost exclusively sought after as expert witnesses for medical malpractice cases, and they average $625 per hour, according to Round Table Group data.

"This figure includes some brain surgeons and heart surgeons," says Zafran, "which may explain the high rate."

2. Cardiologists

Medical malpractice is also the top reason why heart doctors are sought after by attorneys, according to Zafran. Cardiologists average $560 per hour, although their rates (as well as all physicians' rates) fluctuate by geographic region.

3. Oncologists

Some--but not all--cases for which oncologists are requested are medical malpractice lawsuits. Oncologists average $580 per hour, according to Round Table Group data.

4. Psychiatrists

Per Zafran, most psychiatrists who are matched with clients through Round Table Group are asked to determine whether individuals are considered mentally stable. Psychiatrists average $423 per hour, according to RTG.

5. Infectious disease experts

These experts are sought after less frequently than the above-mentioned specialists, says Zafran, but the infectious-disease specialty sits squarely in the top five.

There is no clear litigation category for which these doctors are requested; cases seem to vary. Infectious disease experts average $508 per hour, according to Round Table Group data.

It is important to note that expert services firms commonly present a rate higher than what an expert demands. The amount varies but is typically around $100. In exchange for this, expert services firms locate and vet hard-to-find experts in all specialties. These experts, at the top of their field, are often not listed on any free "expert" databases.

Hourly rate increases with uncommon knowledge

Physicians' hourly rates tend to rise within specialties, says Zafran. Uncommon knowledge tends to command higher rates.

"The more specific a case is, the more expert witnesses can charge," explains Zafran. "If an attorney needs someone to be familiar with a specific rare medical procedure, the expert will charge more than a generalist, since fewer people would have such expertise. This is true even among the specialist categories."

Other reasons why physicians may charge higher-than-average rates: They're well-seasoned expert witnesses with extensive courtroom experience who feel they're worth more to attorneys--or they have extremely busy hospital or academic schedules and feel it isn't worth their while to consult for less money.

 "But everything in this business is negotiable," says Zafran, "so look through experts' CVs and choose someone you want. Round Table Group is willing to work with you on fees."

The series continues

In our next issue, we'll focus on billing rates for expert witnesses who testify about patents. Of note:

• The number-one expert-witness request that Round Table Group fields is for patents cases.
• Most frequently, patent attorneys seek electrical engineers or computer scientists with academic posts to determine whether products infringe on patents.
• Attorneys also seek expert witnesses who can determine whether their clients' projects are legitimate, especially those who can evaluate electronic devices or source code for computer software.

It's critical that expert witnesses understand the rules about the discoverability of expert materials and spoliation, says Paul Veith, a partner at Sidley Austin LLP, who recently gave a presentation on the subject at a Law Seminars International event in Chicago.

Why?  Document spoliation could result in preclusion of testimony--or worse.

Ways in which spoliation could occur

Dr. Fred Cohen, Research Professor at the University of New Haven in forensic sciences, a member of Round Table Group's network of 95,000 experts, and founder of Fred Cohen & Associates, says, "The problem of spoliation starts with the fact that it's latent evidence.  One way or the other, the only thing the jury is going to see is a representation, which may not fairly represent the actual evidence."

Digital forensic evidence has many chances for spoliation along the way.  Here's an example: Traffic on a network exists for only a very brief time period, Cohen says.  That data could be forged, encrypted, or not collected in a timely manner.  Various audit trails might exist, so many separate logs might need to be accessed to collect all of the needed information.  "If you don't act to retain audit trails, all you have is the file on the computer, which might have been broken into or otherwise altered."  The longer the data sits, the more opportunity there is for spoliation.

The expert witness' role in spoliation prevention

Some documents created by expert witnesses (including drafts of their reports) must be furnished to the opposing legal team unless both sides decide otherwise. If such discoverable documents are destroyed by your expert witnesses, whether intentionally or unintentionally, there may be consequences, Veith says.

"If there is spoliation found, you could potentially face preclusion of the expert's testimony in whole or in part," he says. "You might face an order compelling you to attempt to forensically recover any deleted materials on computers. Sometimes a judge will instruct a jury that the deletion of a document should lead them to infer something unfavorable about the deleting party. And in some cases, spoliation can lead to the dismissal of a claim or defense."

To avoid problems, consider Veith's advice on spoliation when you begin working with a new expert witness:

1.  Make an agreement.

"One common practice is coming to an agreement with the opposite party governing the discoverability of expert materials," says Veith.

"You make clear the dos and don'ts about what will be discoverable."

You may decide, for example, that rough drafts of expert reports won't exchange hands. "Attorneys may say, 'We know we'll each help our experts get their reports into shape because engineers don't write like attorneys,'" says Veith. "An agreement says: 'We'll do our work and you do yours without worrying about the paper trail.'"

Agreements can also dictate that written communications between experts and attorneys  won't be produced by either side.

2. Limit your experts' writing.

It's not always possible to agree to alter the basic rule of discoverability, and sometimes an agreement doesn't make sense, says Veith.

In the absence of an agreement, "you have to be very careful that no documents are created that you wouldn't want the other side to see," he says.

You'll need to carefully explain to your expert witnesses what types of documents are off-limits.

3. Limit your own writing.

If drafts of reports and written communications with experts will be discoverable, be sure your written comments don't reveal your impressions of the case at hand.

"The attorney work-product doctrine generally protects the mental impressions of attorneys from disclosure," explains Veith, "but when an attorney contributes something to an expert's work that is fully discoverable, the attorney's thought then becomes discoverable. That's why attorneys like to enter agreements; they'd rather not expose their input to the light of day."

4. Spell out the rules to everyone involved.

Don't just tell your expert witness your expectations about discoverable expert materials; make sure he passes along the message to everyone who works in his office.

"Stress that the junior people on his team and your team are reading from the same hymnal," says Veith. "You might have a perfect understanding with the lead expert, but if your associate and his associate start communicating in a different way than had been agreed upon, it's all for naught."

Many of Round Table Group's expert witnesses have experience working with attorneys, so they should be familiar with the rules of discoverability. But even a seasoned expert can benefit from hearing your expectations about spoliation particular to your case.

Digital Forensics Experts

Cohen, a Round Table Group expert witness, stresses that you should seek digital forensics experts who meet the same high standards you would expect from a medical expert witness, for example.  "You should look for someone with a great deal of specialized experience.  The top tier should have a PhD, 30 years of experience, work with education and technology--but there are very few experts who meet those qualifications."

Round Table Group can help litigators seek out competent experts who have proper training and background in this arena.

It is a foregone conclusion that expert witnesses can make the difference in an important case.  Yet, working with experts, from sourcing them to preparing them for trial, can be a challenge.

In this article, we interview a number of litigators abouttheir "expert witness war stories."

Lesson One: Get help when you have trouble finding exactly the right person

Finding the right expert can make or break a case. Eric Hudson, an attorney with Butler Snow, recalls the time he represented the defendant in a toxic tort case involving 250 plaintiffs. He needed an oncologist with a high level of credibility to respond to cancer claims.

"We had a hard time locating such a specific person," says Hudson, "and when we weren't having any luck we looked into Round Table Group. Within a matter of days they put us in touch with someone who was perfectly credentialed for what we were looking for. And she did a phenomenal job. We couldn't have been more pleased with her."

Paul Ragusa, a partner at Baker Botts LLP, had a similar experience with Round Table Group. He needed a technical expert for a case brought on by a sole indenter against a group of cellular mobile handset manufacturers. "We did attempt to get an expert on our own, and found it difficult to do so," says Ragusa."Round Table Group found several potential candidates, and the case resulted in a very favorable settlement."

Similarly, William Hyslop, a principal at Lukins & Annis PS, required someone with a substantial banking background for a commercial litigation case involving banking issues. "This is a field of fairly specialized expertise. We were able to interview several different candidates that Round Table Group recommended, and selected one that ultimately worked out very well."

Lesson Two: Know your expert's work

Chris Christie, a partner at Bradley Arant Rose & White LLP, recalls a time when opposing counsel's ignorance about its expert's work became detrimental to the case.

"As part of a question, I read a quote from the opposing expert's book," says Christie. "Opposing counsel, who did not know where the quote came from, called the quote the most asinine thing he had ever heard.The expert witness subsequently did not follow that lawyer's objections or other attempts to control his own expert's testimony."

On a separate occasion, the expert in a bid-rigging case stated that 90 percent of bids included at least one tie, when in actuality only eight out of 10 bids had a tie. "He would not admit a mistake," says Christie. "The case settled when, while a Daubert motion was pending, the judge seemed likely to exclude the statistician's testimony as unreliable.

"This is an example of why you always have to check your experts' and opposing experts' work. You need to read what's submitted to you, and you need to review what else he's written, because even a statistician will make a mistake like saying that eight out of 10 is 90 percent. So the lesson is, don't trust your own expert--check it yourself."

Russ W. Rosenzweig, CEO of Round Table Group, an expert witness referral firm, concurs with Christie.  "Finding the perfect expert is difficult enough, but it is not enough.  You also need to predict what the expert will say, and this is done by reading her past articles, deposition transcripts, blog entries.  Collecting these materials is very time consuming, and Round Table Group can help aggregate these materials for you."

Lesson Three: A free expert could cost you

Shell Bleiweiss, whose offices specialize in environmental and OSHA law, recalls the time he took an $11,000 case as a family favor. He needed to prove that a replacement for a residential boiler was defective. The client didn't want to spend additional money on an expert, but the person that installed the boiler agreed to testify as a favor.

Bleiweiss says the expert was willing to say all of the right things, and he did well in the informal interview with opposing counsel early in the case. Ordinarily, Bleiweiss would have gone over everything with him again repeatedly before trial to make sure he was ready.

But because it was a favor, Bleiweiss decided to rely on the assumption that the expert would say the same things he said in the interview. And he didn't.

"He got very wishy-washy at trial and said maybe this, maybe that.Very different from what he'd said before.You dig yourself in a hole you can't get out of when that happens," says Bleiweiss.

"It was as much my fault as the expert's in this instance, but the moral is you have to pay for quality," says Bleiweiss. "And be doubly careful if someone's doing you a favor. Make sure they know you're going to expect the same level of input from them as if they were being paid. And even then, it's hard to follow through with it.In general, you're better off paying."

Round Table Group can help you avoid the problems that can arise if you don't have the right expert on your case by locating, assessing and delivering expert candidates.  RTG's team of trained attorney specialists uses rigorous methodologies, relationships with numerous firms and proprietary databases to find unbiased expertise.  Please contact Mark Swansiger at 202-595-2000 for a demonstration on how Round Table Group provides a level of service, and a breadth and depth of experts that is unmatched.