by R. Kent Warren, McGuireWoods
Effective October 1, 2015, the rules regarding expert discovery have changed. North Carolina Rule of Civil Procedure 26(b)(4), which governs expert discovery, has been amended to bring it more in line with its federal counterpart. Amended Rule 26(b)(4) changes the way parties disclose testifying experts and extends work-product protections to draft expert reports and most attorney communications with experts. Amended Rule 26(b)(4) only applies to cases filed on or after October 1, 2015. Cases filed before then are still governed by the old rule. The most notable changes to Rule 26(b)(4) are summarized below.
Affirmative Obligation to Disclose Testifying Experts. The prior version of Rule 26(b)(4) did not require parties to identify testifying experts unless another party requested this information by way of interrogatory. Amended Rule 26(b)(4) now imposes an affirmative obligation on parties to disclose their testifying experts regardless of whether this information has been requested. Failure to comply with this disclosure requirement could result in exclusion of the expert at trial.
Expert Reports Permitted By Agreement. Amended Rule 26(b)(4) provides parties with the option of accompanying their expert disclosures with a written report. If the parties agree to exchange written reports, the report must contain the following information: a complete statement of the witness’s opinions and the basis and reasons for them; the facts or data considered by the witness in forming the opinions; the witness’s qualifications, including a list of all publications authored in the previous 10 years; a list of all cases in which the witness testified in the previous four years; and a statement of the witness’s compensation. Absent an agreement by the parties or court order requiring written reports, a party may through interrogatory require any other party to identify the following information: the subject matter on which the witness is expected to testify; the substance of the facts and opinions to which the witness is expected to testify; and a summary of the grounds for each opinion.
Right to Depose Testifying Experts. Under the prior version of Rule 26(b)(4), a party was only entitled to obtain expert discovery “through interrogatories.” As a result, expert depositions were permitted only by agreement of the parties or court order. Under Amended Rule 26(b)(4), a party is now entitled to depose any other party’s testifying expert; no agreement by the parties or court order is needed.
Discovery of Non-Testifying Experts Is Prohibited Absent “Exceptional Circumstances.” Amended Rule 26(b)(4) provides that discovery of non-testifying experts is prohibited absent a showing of “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means,” or unless permitted under Rule 35(b) (court-ordered examining physicians).
Discovery of Draft Reports Prohibited. Amended Rule 26(b)(4) provides that “[d]rafts of reports provided under [this Rule] are protected from disclosure and are not discoverable regardless of the form in which the draft is recorded.”
Trial Preparation Protections Extended to Attorney Communications with Experts. Under the prior version of Rule 26(b)(4), it was unclear whether or to what extent attorney communications with testifying experts were discoverable. Amended Rule 26(b)(4) resolves this issue by explicitly shielding from discovery communications between a party’s attorney and its testifying experts unless the communications do any of the following: (1) relate to the expert’s compensation; or (2) identify information or assumptions provided by the attorney that the expert considered in forming his or her opinions.
Default Deadlines for Disclosing Expert Testimony. Under Amended Rule 26(b)(4), unless otherwise agreed to by the parties or ordered by the court, the parties must disclose any expert opinions (either by written report or interrogatory response, as applicable) at least 90 days before trial. Parties must disclose any rebuttal witnesses within 30 days after the other party’s expert witness disclosure.
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