Obtaining Information about the Opposing Retained Expert’s Income

Everyone likes to ask retained experts how much income they derive generally from their expert witness work.  However, is that question within the permissible scope of discovery?

This topic arose locally in a state court case.[1]  The plaintiff served a subpoena upon the defense’s retained medical expert for

  1. All tax reporting documents he or his medical practice received from third-party liability insurance companies or law firms in the preceding five years.
  2. The tax returns for the medical practice and the doctor, individually, during that same time.
  3. All invoices he or the medical practice submitted for medical/legal services in that time.
  4. All medical reports the expert prepared in that period of time that concerned “malingering”
  5. All medical reports the expert prepared during that time that addressed specific medical guidelines.

The expert’s personal counsel objected to the subpoena, leading to a motion to compel.  There was extensive argument about the extent to which income information is discoverable from expert witnesses and if the subpoena was compliant.  Ultimately, Discovery Commissioner Bulla’s March 2, 2016 minute order stated:

Discovery Commissioner Finds the public policy would be better served and potential HIPAA violations; and request is burdensome; and with a trial date of 4/11/16 it is unreasonable because of the amount of records involved; nor would the Discovery Commissioner be inclined to grant the request because of the bias in this case is with respect to this particular Plaintiff. FURTHER FINDS the information that would allow Plaintiff to show bias was obtained; and, case law cited says amount “or” percentage of income which was obtained during the deposition. COMMISSIONER RECOMMENDED, Plaintiffs’ Motion to Compel Compliance With Subpoena Duces Tecum is DENIED.

[1] A-13-684718-C.