While it doesn’t happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert. This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose. The general rule seemingly had been that these sessions can be taped (with notice – not surreptitiously). Why do people want to do this? Some people are not trusting. Others want to make sure that they are not misquoted in an experts report. Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.
A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too. In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped. Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.
As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation. Notwithstanding the conclusion, the judge noted:
Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert. Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.