CHAPTER 7 - 7-5 Discovery Concerning Consulting Experts

• Jurisdiction: United States

7-5 Discovery Concerning Consulting Experts

As previously noted, Texas Rule 195 relates only to testifying experts.⁹⁸ Also as previously noted, discovery concerning a consulting-only expert is impermissible.⁹⁹

Broad discovery, however, is available concerning a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert.¹⁰⁰ The scope of such discovery is governed by Texas Rule 192.3(e) and, under that Rule, is the same as that for testifying experts.¹⁰¹ In other words, a party is entitled to obtain the same information concerning a testifying expert and a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert. And, although Texas Rule 195 limits the discovery methods concerning testifying experts, it does not limit the methods concerning consulting experts whose mental impressions or opinions have been reviewed by a testifying expert.¹⁰² Rather, discovery concerning such consulting experts can be obtained by the methods permitted with respect to witnesses other than testifying experts. Thus, for example, interrogatories, although impermissible with respect to testifying experts, can be used with respect to consulting experts whose mental impressions or opinions have been reviewed by a testifying expert (and should be used with respect to such consulting experts because Texas Rule 195.5(a)'s disclosure obligation does not apply to them).

Moreover, as discussed in Chapter 6, section 6-3:3.5a, a consulting expert who has first-hand knowledge of relevant facts or acquired knowledge of relevant facts other than in consultation about the action is not a consulting-only expert immune from discovery. Rather, such a person can be deposed regarding that knowledge.¹⁰³

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Notes:

^[98] See Chapter 7, section 7-3 to -4.

^[99] See note 16 and accompanying text.

^[100] See Tex. R. Civ. P. 192.3(e) (providing for the scope of expert discovery); see Tex. R. Civ. P 195 cmt. 1 to 1999 change ("This rule does not limit the permissible methods of discovery concerning consulting experts whose mental impressions or opinions have been reviewed by a testifying expert.").

^[101] Tex. R. Civ. P. 192.3(e).

^[102] Tex. R. Civ. P. 195 cmt. 1 to 1999 change ("This rule does not...