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Subpoenas Duces Tecum to Defense Experts

April 15, 2024

Casey B. Wendling

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Subpoenas Duces Tecum to Defense Experts

Although discovery is generally permissive, Louisiana courts have been unwilling to allow parties to obtain unlimited information from a defense expert witness, especially when it implicates the privacy interests of the defense expert and/or his patients.

The Louisiana Code of Civil Procedure is clear that parties are entitled to obtain certain information and documents from a retained expert, including (1) a written report prepared and signed by the witness; (2) a complete statement of all opinions to be expressed and the basis and reasons therefore; and (3) the data or other information considered by the witness in forming the opinions. La. C.C.P. art. 1425. Further, upon the agreement of the parties or by order of the court, an expert may also be required to produce one or all of the following: (1) exhibits to be used as a summary of or support for the opinions; (2) the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; (3) the compensation to be paid for the study and testimony; and/or (4) a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Beyond these documents, a party seeking information or documents from a defense expert witness must do so through a subpoena duces tecum. Although parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, a party seeking the production of records from any non-party––including expert witnesses––through a subpoena duces tecum is required to make a showing of relevancy and good cause to discover the non-parties’ records. La. Code Civ. Pro. Art. 1422; Stolze v. Safety & Systems Assur. Consultants, Inc., 02-1197 (La. 5/24/02); 819 So.2d 287, 289; Centanni v. Centanni, 21-30, p. 7 (La. App. 5 Cir. 10/19/21); 2021 WL 4852145, writ denied, 21-1851 (La. 2/15/22)21-1851 (La. 2/15/22); 332 So.3d 1184.

However, Louisiana law carves out several exceptions to this general rule, specifically protecting certain categories of information and documents from discovery. For example, Paragraph E of Article 1425 specifically excludes drafts of required expert reports and communications with testifying experts that would reveal the attorney’s mental impressions, opinions, or trial strategy, without sacrificing full discoverability of facts and data supporting the expert's opinions. Such documents are only discoverable on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. When documents or electronically stored information contain both facts and protected material of an attorney, the court may order production subject to redaction. See La. C.C.P. art. 1425, Comment–2007.

Further, Louisiana courts have specifically refused to allow parties to obtain certain financial and private patient information from expert witnesses. In Rodas v. Nutter, 22-106 (La. App. 5 Cir. 5/27/22), the Fifth Circuit stated:

Due to the confidential and personal nature of the information contained in certain financial records, particularly tax records, the requesting party must demonstrate good cause for their production and further establish that the information could not be discovered in a less intrusive manner. Centanni, 2021 WL 4852145, p. 7. We also recognized that concerning plaintiff's request for the IME reports and related medical records of unrelated individuals, the Louisiana Supreme Court has stated that the privacy expectations of patients are not to be lightly set aside, and that the party seeking release of such records must make a substantial showing of both relevance and need. Gariepy v. Evans Indus., Inc., 06-106 (La. App. 5 Cir. 9/25/07); 968 So.2d 753, 755 citing Moss v. State, 05-1963 (La. 4/4/06); 925 So.2d 1185, 1199.

However, the Rodas Court found Plaintiff was entitled to subpoena information regarding the IMEs performed by defendant’s IME doctor, specifically information regarding the number of IMEs performed previously, the identification of the entity or entities which retained his services to perform an IME for the last three years, as well as the percentage of income the doctor earned in relation to these IMEs.

Hopefully, Louisiana courts will continue to place fair limitations on the parties’ ability to obtain overly broad and private information from expert witnesses, specifically to protect defense medical experts from having to produce unlimited information regarding their patients and practice in connection with every lawsuit.

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