By Isaac Thorp
Rule 26(b)(4) of the North Carolina Rules of Civil Procedure governs the procedure for expert witness discovery. The rule was recently amended, and is applicable to actions filed on or after Oct. 1, 2015. The amendments govern the disclosure, discovery, and payment of expert witnesses. They also provide trial preparation protections for draft expert witness reports or disclosures, and communications between a party’s attorney and her expert witness.
This first part of a two-part series addresses the following amendments:
- Rule 26(b)(4)a.3: Disclosure through interrogatory answers
- Rule 26(b)(4)a.2: Option to disclose expert report
- Rule 26(b)(4)b.1: Depositions of testifying experts
Part Two will address these additional amendments:
- Rule 26(b)(4)d: Trial preparation protection for draft reports of testifying experts
- Rule 26(b)(4)a.3: Trial preparation protection for consulting experts
- Rule 26(b)(4)e: Trial preparation protection for communications between an attorney and her testifying experts
- Rule 26(b)(4)c: Payment of experts
Rule 26(b)(4)a.3: Disclosure Through Interrogatory Answers
Rule 26(b)(4) requires that a party, in response to interrogatories, identify each expert witness who is expected to testify at trial, state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. N.C.G.S. § 1-1A, Rule 26(b)(4)a.3.
Practice Tip: You must serve an expert witness interrogatory at least 90 days before the trial date to trigger the opposing party’s obligation to identify her experts, absent a court order or agreement between the parties. This deadline did not exist before the rule was amended in 2015.
Some commentators have mistakenly interpreted this amendment to require a party to automatically disclose her expert witnesses. This misunderstanding may be due to prefatory language in Rule 26(b)(4)a.1, which states that “to provide openness and avoid unfair tactical advantage in the presentation of a case at trial, a party must disclose to the other parties in accordance with this subdivision the identity of any witness it may use at trial to present evidence under Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence.” The key phrase is “in accordance with this subdivision.”
Subsection (b)(4)a.3 includes this language:
Witnesses not providing expert reports.—Unless otherwise stipulated to by the parties, or ordered by the court, a party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, . . .” (emphasis added).
The takeaway here is that an opposing party is not obligated to identify expert witnesses in the absence of an expert witness interrogatory, court order, or an agreement to swap expert witness reports (discussed below).
Rule 26(b)(4)a.2: Option to Disclose Expert Report
The amended rule also provides the parties with the option – but not the obligation – to serve a written report prepared and signed by the expert witness. Parties who elect to exchange expert reports must serve them at least 90 days before trial – the same deadline that exists for serving expert witness interrogatories.
If produced, the expert witness report must contain the following information:
- A complete statement of all opinions the witness will express and the basis and reasons for them.
- The facts or data considered by the witness in forming them.
- Any exhibits that will be used to summarize or support them.
- The witness’ qualifications, including a list of all publications authored in the previous 10 years.
- A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
- A statement of the compensation to be paid for the study and testimony in the case.
N.C.G.S. § 1A–1, Rule 26(b)(4)a.2.
Federal Rule 26 does not offer parties the option of exchanging expert witness reports – it mandates exchange. Since most of the 2015 amendments to North Carolina Rule 26 conform its provisions to its federal rule counterpart, it’s a bit odd that the General Assembly chose to make the exchange of expert reports optional. It is too early to tell whether many litigants in state court will elect this option.
Rule 26(b)(4)b.1: Depositions of Testifying Experts
Before Rule 26(b)(4) was amended in 2015, a party was limited to the use of interrogatories to discover information about an opposing party’s expert witnesses, unless a court order allowed additional discovery about experts by other means, such as the taking of an expert witness deposition. Practitioners often ignored this requirement, unless the opposing party objected. Rule 26 now permits a party as a matter of right to depose an opposing party’s testifying expert, and to obtain additional information about the expert using document requests and subpoenas duces tecum.
Part Two will cover the remaining expert witness amendments to Rule 26, most of which concern shielding certain categories of information from discovery.