Subpoena the records

In New York civil litigation, the credibility of expert witnesses often determines the outcome of complex cases. While experts testify based on specialized knowledge and purported objectivity, their opinions may be influenced by financial interests that create actual or perceived bias. Recognizing this reality, New York discovery rules permit parties to explore the financial relationships between experts and the parties who retain them.

CPLR 3101 broadly authorizes disclosure of all matter material and necessary to the prosecution or defense of an action. This includes information bearing on an expert witness’s potential bias, interest, or motivation to testify favorably for one side. The scope of permissible discovery extends beyond the specific case at hand to encompass the expert’s broader pattern of testimony and financial arrangements with attorneys, insurance companies, and other repeat litigants.

Expert witness bias discovery serves a critical truth-seeking function. Jurors and judges are entitled to know whether an expert derives substantial income from one side of the litigation bar, whether the expert testifies exclusively or predominantly for plaintiffs or defendants, and whether the expert’s financial relationship with a particular attorney or entity might color the expert’s opinions. This information enables effective cross-examination and assists fact-finders in properly weighing expert testimony.

Case Background

Porcha v Binette, 2017 NY Slip Op 08141 (4th Dept, 2017) arose from a personal injury action in which the defendants designated Dr. Riegler as their expert witness for trial. After receiving notice of Dr. Riegler’s anticipated testimony, plaintiff Porcha served a judicial subpoena duces tecum on the defendants’ insurer and other nonparties seeking various documents and materials related to the expert.

Paragraph two of the subpoena specifically requested production of all billing and payment records for examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys for the prior five years. This request aimed to uncover the scope of Dr. Riegler’s financial relationship with the defense bar generally and with the defendants’ insurer specifically. The plaintiff sought to use this information to prepare cross-examination questions addressing any bias or financial interest that might influence Dr. Riegler’s opinions.

The nonparties and defendants moved to quash the subpoena, arguing that Dr. Riegler’s billing records from unrelated cases were not material to the instant litigation and that the request violated privacy interests and constituted improper harassment of the expert. Supreme Court denied the motions in part, permitting discovery of the billing and payment records. The defendants and nonparties appealed.

Jason Tenenbaum’s Analysis

(1) After defendants gave notice that they intended to call Dr. Riegler as an expert witness at trial, plaintiff served a judicial subpoena duces tecum on the nonparties and defendants’ insurer seeking the production of various documents and materials. As relevant to these appeals, in paragraph two of the subpoena plaintiff sought production of all billing and payment records related to examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys for the prior five years. Plaintiff sought such information to ascertain any possible bias or interest on the part of Dr. Riegler.

(2) The nonparties and defendants moved, inter alia, to quash the subpoena, and Supreme Court denied the motions in part. The nonparties and defendants now appeal. Contrary to the contention of the nonparties and defendants, the court properly denied those parts of the motions seeking to quash paragraph two of the subpoena. Plaintiff was entitled to the information to assist her in preparing questions for cross-examination of Dr. Riegler concerning his bias or interest (see Dominicci v Ford, 119 AD3d 1360, 1361 ; see generally Salm v Moses, 13 NY3d 816, 818 ).

Legal Significance

The Fourth Department’s decision in Porcha v Binette establishes clear parameters for expert witness financial discovery in New York litigation. The court’s holding affirms that billing and payment records reflecting an expert’s financial relationships with insurance companies and attorneys constitute discoverable material under CPLR 3101. These records are “material and necessary” because they bear directly on the expert’s credibility, a central issue in any case involving expert testimony.

The decision rejects arguments that such discovery invades privacy interests or subjects experts to unwarranted harassment. While experts have legitimate privacy expectations regarding personal financial matters unrelated to their litigation work, they have diminished expectations of privacy regarding income derived from serving as expert witnesses. Expert witness work is quasi-public in nature, as it involves providing testimony that directly influences judicial outcomes. Courts and litigants have substantial interests in understanding the financial dynamics that might affect that testimony.

Moreover, the five-year lookback period approved in Porcha provides meaningful context without being unduly burdensome. Five years of billing records can reveal patterns in an expert’s practice, including whether the expert testifies predominantly or exclusively for one side, whether income from expert work represents a significant portion of total earnings, and whether relationships with particular attorneys or insurers might create conscious or unconscious bias.

Practical Implications

For plaintiffs and other parties facing adverse expert testimony, Porcha provides a clear roadmap for conducting bias discovery. Upon learning that an opponent will call an expert witness, parties should promptly serve subpoenas seeking comprehensive billing and payment records for a reasonable period, typically three to five years. These subpoenas should be directed to the testifying party, its insurer, and any entities that may have retained or compensated the expert.

The discovered information can support powerful cross-examination at trial or deposition. Questions might explore what percentage of the expert’s income derives from defense work versus plaintiff work, how much the expert has earned from the specific insurance company involved in the case, how many times the expert has testified for the opposing attorney, and whether the expert has ever testified for the questioning party’s side. This line of questioning can significantly undermine an expert’s perceived objectivity.

For defendants and parties designating experts, Porcha underscores the importance of selecting experts who can withstand bias scrutiny. Experts who derive substantial income from one segment of the litigation bar or who have extensive financial relationships with a particular insurer or law firm may be effective witnesses on the merits but vulnerable on cross-examination. Defense counsel should consider these dynamics when selecting and preparing experts for testimony.

Insurance companies and law firms should also maintain organized records of payments to expert witnesses. When subpoenaed for these records, prompt and complete production may satisfy discovery obligations and avoid costly motion practice. Conversely, evasive or incomplete responses can result in court-ordered production and adverse inferences.

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