Cases can be won and lost on how counsel and expert witnesses manage communications. Lawyers must know how to guide an expert through litigation. Failing to properly navigate draft reports and communications with experts can result in a damaged witness, preclusion or sanctions.
Under Connecticut law, lawyers must assume that every communication with an expert will be the subject of questions at deposition and trial.
Conn. Practice Book § 13-4 sets the parameters for discovery available by a disclosed expert:
the party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition or within such other time frame determined in accordance with the Schedule for Expert Discovery prepared pursuant to subsection (g) of this section.
Nothing contained in this section shall impair the right of any party from exercising that party’s rights under the rules of practice to subpoena or to request production of any materials, to the extent otherwise discoverable, Conn. Practice Book § 13-4
The purpose of §13-4 which is to assist the opposing party in the preparation of his case, and to eliminate unfair surprise by furnishing the opposing party with the essential elements of a party’s claim and to assist in the preparation of the defendant’s case. Rules of discovery are designed to “make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Wexler v. DeMaio, 280 Conn. 168, 188-90, 905 A.2d 1196 (2006) Grim v. Paggioli, 2011 Conn. Super. LEXIS 2374, 2 (Conn. Super. Ct. Sept. 13, 2011).
In pertinent part, Conn. Prac. Book P.B. § 13-2 provides that the discovery of information, documents, and the like which are “material to the subject matter” and “not privileged” may be obtained “if the disclosure sought would be of assistance in the prosecution or defense of the action” and the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Conn. Podiatric Med. Ass’n v. Health Net of Conn., Inc., 2006 Conn. Super. LEXIS 452, 5 (Conn. Super. Ct. Feb. 1, 2006).
The right and opportunity to cross-examine an opposing party’s witness is an important, fundamental, and essential component of the adversarial method of resolving disputes; that right and opportunity should not be abridged or restricted absent clearly irrelevant inquiry or, more to the point, the establishment with specificity of a necessity to do so in order to assure the fairness and integrity of the proceeding. The right to fully and incisively cross-examine an adversary’s expert is particularly important Chemical v. Executive Management Co., 1995 Conn. Super. LEXIS 3429, 24, 1995 WL 774526 (Conn. Super. Ct. Oct. 20, 1995).
Draft reports, communications with counsel, and engagement letters are all discoverable under Connecticut law.
Federal Rule 26 applies to expert disclosures in Federal Court. Unlike Connecticut law, Federal Rule 26 provides work product protections to a testifying expert’s communications with counsel. All communications, aside from exceptions outlined in 26(2)(4)(C) (i-iii) between retaining counsel are protected. Draft expert reports are also protected.
Federal Rule 26(2), “Disclosure of Expert Testimony” in relevant part, reads as follows:
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection 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.
(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. 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 in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Federal Rule 26’s provisions regarding experts were enacted to reduce litigation costs, allow experts and retained counsel to communicate freely by avoiding wasteful measures designed to minimize communications.
In order to ethically handle litigation, counsel must understand both State and Federal rules regarding expert disclosure and discovery. The difference between the State and Federal rules matters in the area of expert witnesses.