CHAPTER 7 - 7-4 Discovery Concerning Testifying Experts

• Jurisdiction: United States

7-4 Discovery Concerning Testifying Experts

For cases filed on or after January 1, 2021, Texas Rules 195.1, 195.4, and 195.5 identify the only discovery methods that can be used to obtain information from testifying experts: (1) the required disclosures under Texas Rule 195.5(a);¹⁷ (2) oral depositions;¹⁸ and (3) expert reports.¹⁹ Because these methods are not mutually exclusive, a party can use all of them to obtain discovery about retained-testifying experts. Interrogatories, production requests, requests for admission, and depositions upon written questions, however, cannot be used to obtain discovery about retained-testifying experts.²⁰

The discovery methods that can be used to obtain discovery from non-retained-testifying experts are the same as those that can be used to obtain discovery from retained-testifying experts²¹ with two exceptions—non-retained-testifying experts can also be deposed upon written questions²² and can be served with a production request under Texas Rules 176 and 205, including for information unobtainable via Texas Rule 195.5(a)(4).²³

7-4:1 Designating Testifying Experts

Texas Rule 195.2 sets forth a schedule for testifying-expert designations, which can be modified by court order or by the parties' agreement.²⁴ As amended effective January 1, 2021, it provides:

[A] party must designate experts—that is, furnish information described in [Texas] Rule 195.5(a)—by the following dates:

(a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period;

(b) with regard to all other experts, 60 days before the end of the discovery period.²⁵

The designation deadline for "experts testifying for a party seeking affirmative relief" (e.g., a plaintiff, counter-plaintiff, cross-plaintiff, or third-party plaintiff) applies only to experts testifying specifically in support of a claim for relief, and not to all experts that a party seeking affirmative relief may use. Thus, for example, in an action in which the defendant has filed a counterclaim, both the plaintiff and the defendant must designate experts on their respective claims and counterclaims within the 90-day period and can designate their experts on defensive issues within the 60-day period.

Although Texas Rule 195.2 does not specifically deal with "dual-purpose" experts (i.e., experts who will testify about both affirmative claims for relief and defensive issues), its language suggests that both deadlines apply to such experts depending on their opinions. In other words, the expert's opinions on affirmative claims and defensive issues would be due within the 90-day deadline and 60-day deadline, respectively.

Texas Rule 195.2 does not provide for the designation of rebuttal experts. Consequently, if the parties anticipate using them, the better and most prudent practice is to provide a deadline for their designation in a scheduling or other order or a Texas Rule 11 agreement.

An interesting question is: What happens when the party who designated an expert later decides the expert's opinions and testimony could do it more harm than good, or otherwise wants to de-designate the expert?²⁶ This so-called "Red Rover" issue²⁷ arises often in civil litigation.

Texas Law permits a testifying expert to be "de-designated" as long as it is not part of "a bargain between adversaries to suppress testimony" or for some other improper purpose.

The policy underlying the discovery rules is to seek the truth so that disputes may be decided by facts that are revealed rather than concealed. . . . The protection afforded by the consulting expert privilege is intended to be only a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects of discovery.²⁸

7-4:2 Depositions of Testifying Experts

Depositions are one of the discovery methods that can be used with respect to testifying experts.²⁹ As discussed above, retained-testifying experts can be deposed only by an oral deposition, whereas a non-retained testifying expert can be deposed either by an oral deposition or a deposition upon written question.³⁰ In addition, the deposition notice for a non-retained-testifying expert, unlike that for a retained testifying expert, also can contain production requests.³¹

A testifying expert's deposition can cover the matters in Texas Rule 192.3(e).³² Absent agreement or contrary court order, Texas Rule 199.5(c)'s six-hour time limit applies to expert depositions.³³

Texas Rule 195.3 sets out the scheduling sequence for depositions of retained-testifying experts.³⁴ It distinguishes between depositions of experts of a party seeking affirmative relief and those of a party who is not seeking affirmative relief.³⁵ For a party seeking affirmative relief (e.g., a plaintiff, counter-plaintiff, cross-plaintiff, or third-party plaintiff),³⁶ Texas Rule 195.3 has different schedules depending on whether an expert report has been produced.

The Rule generally requires that a retained-testifying expert of a party seeking affirmative relief, who has not produced an expert report, be produced for deposition "reasonably promptly after the expert is designated."³⁷ "Designation" occurs when the information required by the expert-disclosure rule, Texas Rule 195.5(a), is provided.³⁸ If, however, the party provides an expert report, which must include the expert's "factual observations, tests, supporting data, calculations, photographs, and opinions,"³⁹ the expert need not be produced "for deposition until reasonably promptly after all other experts have been designated."⁴⁰ Thus, a party needs to balance an expert report's cost against the value of postponing the expert's deposition until after the other parties designate their experts.⁴¹

If the retained-testifying expert's deposition, "due to the actions of the tendering party," cannot "reasonably be concluded more than 15 days before the deadline for designating other retained-testifying experts, that deadline must be extended[, under Texas Rule 195.3(a)(1),] for other experts testifying on the same subject."⁴² Although not expressly required by the Rule, a party needing such an extension of time, as a matter of prudence, should move for one before the deadline that would otherwise have applied to its expert designations.

Under Texas Rule 195.3(b), a party not seeking affirmative relief need not make its retained-testifying experts available for deposition until "reasonably promptly" after (1) it has designated such experts, and (2) "the experts testifying on the same subject for the party seeking affirmative relief have been deposed."⁴³ Literally applied, this limitation appears to allow a party to avoid producing its retained-testifying expert for deposition by failing to depose the retained-testifying experts of the party seeking affirmative relief. But any argument for such a construction should be rejected as gamesmanship, and, under Texas Rule 191.1, the trial court should modify the limitation and order the retained-testifying expert's deposition at an appropriate time.

Neither Texas Rule 195.2 nor any other procedural rule specifies the time for making non-retained-testifying experts available for deposition. Accordingly, such experts can be deposed, subject to the constraints on the conduct of discovery from nonparties, at any time during the applicable discovery period after their designation.

With respect to retained-testifying experts, the party hiring the expert generally must pay "all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition[.]"⁴⁴ For good cause, however, a trial court can modify this allocation of fees.⁴⁵ Neither Texas Rule 195 nor any other discovery rule requires the party who deposes a non-retained-testifying expert to pay the expert a "reasonable fee" for giving his deposition.⁴⁶

7-4:3 Expert Disclosures and Reports

Texas Rule 195.5(a) sets forth the disclosures required for testifying expert witnesses in cases filed on or after January 1, 2021.⁴⁷ The general purpose of these disclosures is "to give the opposing party sufficient information about the expert's opinions to prepare to cross-examine the expert and to prepare expert rebuttal evidence."⁴⁸

Texas Rule 195.5(a) provides as follows:

Without awaiting a discovery request, a party must provide the following for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:

(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony;

(B) the expert's current resume and bibliography;

(C) the expert's qualifications, including a list of all publications authored in the previous 10 years;

(D) except when the expert is the responding party's attorney and is testifying to attorney fees, a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; and

(E) a statement of the compensation to be paid for the expert's study and testimony in the case.⁴⁹

As noted in section 7-1:1 above, the disclosures in Texas Rule 195.5(a)(1)-(4)(B) are the same as the disclosures in former Texas Rule 194.2(f), whereas the disclosures in Texas Rules 195.5(a)(4)(C)-(E) are modeled after those in Federal Rule 26(a)(2)(B) (iv)-(vi).⁵⁰

As with former Texas Rule 194.2(f), some of Texas Rule...