Augment is such an ugly word.
It means to enhance something, or to make something greater.
That’s not exactly what we’re doing when we move to augment an expert witness list, but that’s the term used in California. Let me explain.
Start with the law and take it bit by bit. CCP § 2034.610 says
- If a party has “timely” exchanged expert witness information;
- And makes a motion;
- The court may grant leave to do either or both of the following: 1) augment that party’s expert witness list and expert witness declaration by adding an expert subsequently retained; 2) amend that party’s expert witness declaration regarding the general substance of the expected testimony.
Under subsection (b) of CCP § 2034.610, the motion must be made before the close of discovery so the expert can be deposed by the other side. Also, subsection (c) requires a meet and confer declaration under section 2016.040.
So What Is A Motion To Augment Expert Witness List In California?
It’s a motion that permits you to ask the court to allow you to either 1) add an expert you retained after the initial and supplemental expert disclosure; and/or 2) amend your expert witness declaration to allow your expert to talk about other things.
A motion to augment expert witness list lets you a subsequently-retained expert, or amend the declaration as to the general substance of testimony a previously-designated expert will give. It’s a failsafe measure if something goes wrong for you.
What Should You Know About A Motion To Augment Expert Witness List
A few things come to mind when looking at CCP § 2034.610:
- Try to work it out with the other side before bothering the court. That’s the point of the meet and confer requirement under subsection (c)
- If you didn’t “timely” exchange expert witness information, the court is unlikely to grant your motion
- A motion is required, so you have to follow the motion timing and service rules
- You can either “augment” or “amend” or do both.
What Are The Conditions The Court Considers When Ruling On A Motion To Augment Expert Witness List
Under CCP § 2034.620, the court “shall” grant the motion “only if all of the following conditions are satisfied”:
- The court has considered how much the other side relied on your expert list
- The court thinks no party opposing the motion will be prejudiced
- The court finds one of two things: 1) even with reasonable diligence, you couldn’t have known to call the expert or offer the testimony earlier; 2) the failure to add the witness was due to mistake or excusable neglect
Even then, make sure you “promptly” move to augment and serve the expert list. See CCP § 2034.620(c)(2)(a-b). Plus, you’d better make that expert available for a deposition immediately. See CCP § 2034.620(d).
Are Sanctions Available With A Motion To Augment Expert Witness List
The court “shall” impose monetary sanctions on any party or attorney who “unsuccessfully makes or opposes a motion to augment or amend expert witness,” unless there’s “substantial justification” that makes the imposition of sanctions unjust. See CCP § 2034.630.
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