Are Expert Communications Discoverable?
New York and New Jersey rules differ from each other and differ from the Federal Rules of Civil Procedure, concerning consulting and testifying experts.
by Aronds, OVERRULED! collections
Consulting Experts
Under the Federal Rules of Civil Procedure, except under exceptional circumstances, an opposing party may not discover facts or opinions held by an expert who is not expected to testify as a witness at trial – i.e., the facts or opinions held by a consulting expert. (Fed. R. Civ. P. 26(b)(4)(D).) Therefore, except under exceptional circumstances, a consulting expert’s work product is protected from disclosure. However, Rule 26 is silent concerning whether or not a consulting expert’s identity must be disclosed in discovery, and the circuits are split on this question. In various New York district court cases, the courts have held that a non-testifying expert’s identity is protected from disclosure except under exceptional circumstances. Therefore, the New York district courts have applied Rule 26 to disclosure of a consulting expert’s identity even though the rule does not explicitly address that subject. (Citations omitted.)
In New York state court matters, “materials . . . prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent)”, are protected from disclosure unless the opposing party shows a “substantial need” for the material, or is “unable without undue hardship to obtain substantial equivalent materials by other means.” (CPLR 3101(d)(2).) Thus, under New York law, absent showing a “substantial need” for the material or an undue hardship to obtain substantial equivalent materials by other means, a consulting expert’s work product is protected from disclosure.
In New Jersey, the rule is similar to the federal rule. The applicable New Jersey Rule of Court provides that “[a] party may discover facts known or opinions held by an expert . . . who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.” (Rule 4:10-2(d)(3).) Additionally, if disclosure of a consulting expert’s work product is permitted under these exceptions, the court may impose upon the party obtaining the work product a “fair portion” of the fees and expenses that were charged by the expert to the party that retained him or her. (Id.; citation omitted.)
Therefore, absent exceptional circumstances, or, with respect to New York, without showing a “substantial need” for the consulting expert’s work product or demonstrating an undue hardship to obtain substantial equivalent materials by other means, a consulting expert’s work product is protected from disclosure under the federal rules and the applicable New York and New Jersey rules.
Testifying Experts
Under the Federal Rules of Civil Procedure, “facts or data” considered by a testifying expert in forming his or her opinion must be disclosed. (Fed. R. Civ. P. 26(a)(2)(B)(ii).) However, except with respect to certain exceptions, draft reports, notes, and attorney communications are protected from disclosure in discovery. These exceptions are: (i) communications concerning compensation; (ii) facts or data given by the attorney to the expert to consider in forming an opinion; and (iii) assumptions provided by the attorney that the expert relies on to form an opinion. (Fed. R. Civ. P. 26(b)(4)(C).) In addition, testifying experts are required to produce a written report under the Federal Rules of Civil Procedure.
In New York, each party must produce information concerning its testifying expert upon the request of an opposing party, including the identity of the expert, the subject matter on which the expert will testify, the facts and opinions on which the expert will testify, the basis for those facts and opinions, and the qualifications of the expert. (CPLR 3101(d)(1)(i).) “Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate.” (CPLR 3101(d)(1)(iii).) Therefore, without a court order obtained by showing special circumstances, testifying experts are not required to produce a written report, and attorneys are prohibited from taking expert depositions. However, the Commercial Division, the venue for contract and other designated commercial disputes, requires experts to produce written reports and allows for expert depositions. (Commercial Division Rule 13(c).)
In contrast to Fed. R. Civ. P. 26, which, as explained above, largely protects from disclosure communications between attorneys and testifying experts, under New York law, special circumstances must be shown to obtain written communications between the testifying expert and attorney. (CPLR 3101(d)(1).) Indeed, it has been held in New York that an expert’s draft reports, notes, etc. are subject to disclosure only “where physical evidence is ‘lost or destroyed’ or ‘where some other unique factual situation exists,’ such as proof ‘that the information sought to be discovered cannot be obtained from other sources.'” (Ruthman v. Nardiello, 732 N.Y.S.2d 455, 457 (N.Y. App. Div. 2001) (other citations omitted).)
In New Jersey, “[a] party may through interrogatories require any other party to disclose the names and addresses of each person whom the other party expects to call at trial as an expert witness . . . [and] may also require . . . the furnishing of a copy of that person’s report.” (Rule 4:10-2(d)(1).) Discovery of communications between an attorney and testifying expert “is limited to facts and data considered by the expert in rendering the report.” (Id.) “[A]ll other communications between counsel and the expert constituting the collaborative process in preparation of the report, including all preliminary or draft reports . . . shall be deemed trial preparation materials discoverable only as [permitted by Rule 4:10-2(c)]”, which provides that trial preparation materials are discoverable “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” However, Rule 4:10-2(c) explicitly bars disclosure “of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation”, even when the required showing is made. (Id.)
At Rosenfarb LLC, we are a firm of forensic accounting and valuation experts. We have been retained as both consulting experts and testifying experts. We recognize that there are jurisdictional differences regarding discovery of our communication with counsel. We are experienced and professional. We produce well-supported, well-reasoned, and well-communicated damage calculations that withstand the rigors of litigation. We understand the litigation process. We are accounting experts with legal acumen.