December 21, 2015
For cases filed on or after Oct. 1, 2015, in North Carolina state courts, there are new changes to how the parties will approach expert disclosure and discovery.
Effective Oct. 1, and applying to cases filed on or after that date, North Carolina’s Rule of Civil Procedure, Rule 26(b)(4), has been amended to provide more detailed requirements regarding discovery of information related to expert witnesses. These changes are the result of North Carolina House Bill 376, entitled “An Act Amending the Rules of Civil Procedure to Modernize Discovery of Expert Witnesses and Clarifying Expert Witness Costs in Civil Actions.”
The new rule begins much the same way the old rule did: The only way to obtain the facts known and the opinion held by a party’s expert, which are otherwise discoverable, and were acquired or developed in anticipation of litigation, is by following the language and guidelines in Rule 26(b)(4). However, the new rule includes five significant changes.
Automatic Disclosure of Experts Required
The first change states that “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 . . . .” N.C. R. CIV. P. 26(b)(4)(a)(1) (as amended Oct. 1. 2015, and cited hereinafter). The purpose of this change is “to provide openness and avoid unfair tactical advantage in the presentation of a case at trial . . . .” Id. Unlike the old rule, which required disclosure in response to an interrogatory, the new rule appears to require self-disclosure of experts. In the absence of an agreement between the parties, however, the mechanics of this self-disclosure are not absolutely clear. Thus, as discussed herein, the prudent practitioner would not rely upon his adversary’s self-disclosure, but would still send an interrogatory requesting the identity of any experts and information concerning their opinions.
Optional Expert Report - Fallback Interrogatories
The second change is that parties have the “option” to provide, along with the required disclosure, a “written report prepared and signed by the witness if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” N.C. R. CIV. P. 26(b)(4)(a)(2). If a party elects to take advantage of this option, the report must contain several elements:
- 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 witnesses’ 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.
The language of subsection (f) of the new rule, which discusses timing, implies that the submission of reports is done through agreement by the parties; the rule states, “[p]arties agreeing to the submission of written reports pursuant to sub-sub-subdivision 2. Of sub-subdivision a. of this subdivision . . . .” N.C. R. CIV. P. 26(b)(4)(f). The alternative to gaining information from testifying experts from reports is through the use of interrogatories. N.C. R. CIV. P. 26(b)(4)(a)(3). Regardless of whether the parties agree to written reports or interrogatories, or if there is no agreement (and thus a party is using interrogatories), both interrogatories and the written reports must be served at least 90 days prior to trial. N.C. R. CIV. P. 26(b)(4)(f)(1). The court, by scheduling order or otherwise, may alter these timing requirements. N.C. R. CIV. P. 26(b)(4)(f).
Automatic Testifying Expert Depositions Allowed
The third key change in the rule is the addition of language specifically addressing depositions of an expert. Unlike the prior rule, which, upon an objection, required a court order for an expert deposition, the new rule provides that a deposition may be taken of any testifying expert after the expert’s report or responses to interrogatories have been provided. N.C. R. CIV. P. 26(b)(4)(b)(1). Importantly, this language applies only to testifying experts; the rule provides some express protection as to the discovery of information held by experts “employed only for trial preparation,” i.e., consulting experts. N.C. R. CIV. P. 26(b)(4)(b)(2). A party is not permitted to seek discovery of the “facts known or opinions held” by such an expert. Id. The only way a party may obtain this information is pursuant to Rule 35(b) (for court-ordered examining physicians) or through a showing of exceptional circumstances. Id.
Draft Reports Protected
The fourth major change in the new rule is a subsection specifically addressing draft reports. N.C. R. CIV. P. 26(b)(4)(d) is entitled “Trial preparation protection for draft reports or disclosures” and provides that “[d]rafts of reports provided under sub-sub-subdivision 2. of sub-subdivision a. of this subdivision [those reports submitted in connection with the required expert disclosure] are protected from disclosure and are not discoverable regardless of the form in which the draft is recorded.” N.C. R. CIV. P. 26(b)(4)(d).
Communications between Experts and counsel Protected...Some of Them
Draft reports are not the only piece of trial preparation specifically addressed by the new rule. The fifth important change to the rule is the provision that, with some listed exceptions, “communications between a party’s attorney and any witness providing a report pursuant to sub-sub-subdivision 2. of sub-subdivision a. of this subdivision or identified under sub-sub-subdivision 3. of sub-subdivision a. of this subdivision [identified through discovery], regardless of the form of communication, are protected from disclosure and are not discoverable.” N.C. R. CIV. P. 26(b)(4)(e). The only communications that are discoverable, and are the specific exceptions to the rule, are those that:
- Relate to compensation for the expert’s study or testimony
- Identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed
- Identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed
Id. These exceptions are the same as those found in the Federal Rule 26(b)(4).
Not surprisingly, since the new rule only went into effect for cases filed on or after Oct. 1, 2015, no cases were located addressing these new sections.
The Analogous Federal Rule 26(b)(4)
While there are no North Carolina cases located that discuss the new rule, the Federal Rule of Civil Procedure 26(b)(4) contains some similar provisions and the Federal Advisory Committee has offered some notes on the application of those provisions. Federal Rule of Civil Procedure 26(b)(4)(B) provides a similar rule to the newly enacted North Carolina rule regarding discovery of draft reports and states: “Trial-Preparation for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.” FED. R. CIV. P. 26(b)(4)(B). The advisory committee note for this section states that it applies “to all witnesses identified under Rule 26(a)(2)(A) . . . . [and] [i]t applies regardless of the form in which the draft is recorded, whether written, electronic, or otherwise.” FED. R. CIV. P. 26(b)(4)(B) advisory committee’s note (2010).
Likewise, Federal Rule of Civil Procedure Rule 26(b)(4)(C) is similar to the new North Carolina rule, and contains the same exceptions as those in that rule, stating:
Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered informing the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
FED. R. CIV. P. 26(b)(4)(C). The Advisory Committee explains that with regard to the second exception in the rule, the exception “applies only to communications ‘identifying’ the facts or data provided by counsel; further communications about the potential relevance of the facts or data are protected.” FED. R. CIV. P. 26(b)(4)(C) advisory committee’s note (2010). This line of distinction appears to be bit difficult to walk.
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Peter G. Pappas is a member of Nexsen Pruet, PLLC in Greensboro, North Carolina. He practices in the firm’s Business Litigation and Employment and Labor Law practice groups.
Catherine B. Lane is an associate with Nexsen Pruet, PLLC in Greensboro, North Carolina. She practices in the firm’s Creditor Rights and Business Litigation practice groups.
This article was written as a courtesy to business leaders and professionals. It is for informational purposes only, not legal advice. If you have questions, please contact Peter G. Pappas at (336) 373-1600.