Court Denies Discovery Request for Expert’s Financial Records

by: Anthony F. Della Pelle
22 Nov 2010

A recent New Jersey appeals court has ruled that a litigation expert’s financial records are not subject to disclosure.  This holding could impact eminent domain and real estate tax appeal litigation because both practices rely on expert opinions to establish a property’s value.  In the case in question, a plaintiff’s attorney in a personal injury case requested information from the defendant’s expert in an effort to prove that the expert was a “hired gun” with a guaranteed outcome.  The expert refused to provide the requested information because it would require over 800 hours to compile.  He did concede however at his deposition that well over 95% of his work was for defendants, but that he would accept work from plaintiffs or defendants.  The trial court granted plaintiff’s request for an order compelling the expert to provide documents from a five year period which provided an exact percentage of defense versus plaintiff-based work, income from that work, and the percentage of the expert’s opinion in favor of defendants.

The Appellate Division reversed the trial court judge’s order because the request was both burdensome and harassing.  It acknowledged that litigants are entitled to explore whether an expert has a positional bias, but found that the scope of discovery is not limitless, and that discovery should stop “once the expert provides information that would permit the requesting party to argue to a factfinder that the expert is a ‘professional witness’ or ‘hired gun’ who mostly offers opinions that largely seek to vindicate a particular position.”  The Appellate Division provided guidance for future cases by stating that no bright line can be applied because each case will turn on its own facts and circumstances.  Those facts and circumstances should focus on the particular financial arrangements between the party and its witness, the extent to which an expert renders opinions for plaintiffs and defendants, and the portion of time the expert devotes to litigation.  Relying on a persuasive Florida court opinion, the court concluded that an expert’s business records should only be produced “upon the most unusual or compelling circumstances.”

The Appellate Division’s opinion in Gensollen v. Pareja, ___ N.J. Super. ___ (App. Div. 2010), may be found here.

The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.