Retaining and disclosing expert witnesses: a global perspective.

Author:Durney, Peter M.

IN 2010, Federal Rule of Civil Procedure 26 was amended to afford greater protections to draft expert materials and attorney-expert communications in order to better balance existing disclosure and reporting requirements. Much has since been written concerning the 2010 amendments and the case law that has interpreted them thus far. This article examines the provisions of Rule 26 through a broader lens than simply focusing on the amendments. The authors here evaluate the expert disclosure rules from a more global perspective, starting with the premise that our rules seemed to have developed in the context of and as a direct response to the adversarial nature of the American discovery process. That conclusion seems to be supported by the research underlying this paper.

In a general sense, we have observed that the differences between rules and practices for expert witnesses in the United States, England, and China have evolved based in large part upon who controls discovery, and who plays the role of factfinder. The U.S. and England are common law systems in which the parties drive discovery, whereas China is predominantly a civil law system with a judge at the helm throughout the litigation process. Each nation has adopted procedures for the use and disclosure of expert witnesses tailored to the needs of each system of justice, however, each country's procedures have attributes that could be imported into another's system to remedy current procedural weaknesses. We are already seeing this type of exchange of common law and civil law procedures in England and China, and it is not inconceivable that extending these principles to the U.S. could increase efficiency, decrease costs, and arguably smooth out some inconsistencies in our civil litigation system.

This article seeks to compare the rules governing the use and disclosure of experts under the Federal Rules of Civil Procedure with their recently amended counterparts in England and China. To provide context, we first review the nature of the systems in which these rules exist, namely, their adversarial versus judge-driven discovery processes. We then examine the circumstances under which an expert is permitted to become involved in litigation, and the necessary expert qualifications. We compare the roles of the parties and the judges with respect to selecting experts, the duties of experts to the parties and to the court, and the responsibilities of experts to provide reports or testimony to litigants and judges. Finally, we remark briefly on the possible importation of the most successful principles and practices from other judicial models into the Federal Rules of Civil Procedure to improve our current system.

  1. Expert Retention and Disclosure in the United States

    Two key tenets of the American civil justice system are its adversarial nature and its use of lay juries as factfinders. At the trial stage, the judge functions as an evidentiary gatekeeper, determining what evidence the jury may consider on the way to making factual determinations. The gatekeeping function is of particular importance with respect to expert evidence, where the judge first assesses the reliability of the expert's methodology in reaching his or her opinions before releasing such potentially influential material to the jury.

    1. Expert Selection and Retention

      The federal expert disclosure rules distinguish between experts who plan to testify and experts who serve as behindthe-scenes consultants. Federal Rule of Evidence 702 defines an expert witness as someone "who is qualified as an expert by knowledge, skill, experience, training, or education" who may testify in the form of an opinion if his specialized knowledge will aid the trier of fact (typically a jury), and if it meets a certain threshold standard of reliability. (1) The Advisory Committee Notes make clear that although Rule 702 expressly refers to scientific or technical knowledge, it is not restricted to its literal terms and extends to anyone who may have "specialized knowledge." (2)

      All parties to litigation are entitled to hire their own experts, either to testify as witnesses or to consult outside of court, and to present such experts with issues to be evaluated. While the Federal Rules also contemplate court-appointed experts, the practice is extremely rare. (3) Accordingly, it is most often the case that each party presents its own experts to testify on specific issues, oftentimes the same issues for each side, essentially competing for jury attention and support. Unlike England, the U.S. does not expressly require that an expert witness be objective. Rather, the U.S. rules take a more prophylactic approach, seeking to ensure that the expert's methodology is reliable. The burden is on the court to determine reliability of an expert's methodology and opinion, rather than on the expert to swear and attest that he or she is unbiased.

      To prevent the parties from ambushing each other at trial, and to aid the judge in his or her reliability determination, the Federal Rules of Civil Procedure provide a detailed process for parties to disclose their experts' opinions. (4)

    2. Expert Disclosures and Reports

  2. Testifying Expert Witness: Disclosure of Identity and Reports

    Procedurally, the distinction between testifying expert witnesses and non-testifying expert consultants comes to bear when disclosing their identities and opinions to other parties. Rule 26(a)(2)(A) and (B) make clear that "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence," and that such a disclosure "must be accompanied by a written report--prepared and signed by the witness if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." (5) As explained by a California federal court, "[t]he distinguishing characteristic between opinions of testifying experts that require a report and those that do not is whether the opinion is based on information the expert witness acquired through percipient observations or whether, as in the case of retained experts, the opinion is based on information provided by others in a manner other than by being a percipient witness to the events in issue." (6) Examples of non-reporting testifying expert witnesses include treating physicians or other health care professionals and a party's employees who do not regularly provide expert testimony. (7) As for these witnesses, the proffering party need only disclose "the subject matter in which the witness is expected to present evidence" and "a summary of the facts and opinions to which the witness is expected to testify." (8)

    1. Non-Testifying Experts: No Report Required

    By its express terms, Rule 26(a)(2)(A) only requires disclosure of the identity of testifying expert witnesses; it does not expressly compel parties to disclose the identities of non-testifying expert consultants, and these experts need not file written reports. Rule 26(b)(4)(D) actually goes as far as to expressly prohibit parties from attempting to discover, through interrogatories or depositions, facts known or opinions held by non-testifying experts, except as permitted under Rule 35(b) or upon a showing of exceptional circumstances. (9) With that being said, federal courts are split as to whether discovery of the identity of a non-testifying expert under Rule 26(b)(4)(D) requires a showing of exceptional circumstances. (10) As for experts who wear two hats," i.e., those who are hired to consult and to testify (though perhaps on separate issues), there is a preference for disclosure, but their opinions may be protected if they relate solely to expert's role as a consultant. (11) 3. The Report: Contents, Use, and Protections

    Testifying experts' reports must contain: "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits what will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case." (12) The 2010 amendments altered the language of subsection (ii) from "data or other information" to "facts and data" to limit disclosure to factual materials "by excluding theories or mental impressions of counsel," while still broadly requiring disclosure of any material considered by an expert in forming his opinion, regardless of its source. (13)

    The new "facts and data" language also is consistent with the newly-added work product and attorney-expert communication protections. (14) The 2010 Amendments afford work product and privilege protections to drafts of any report or disclosure required (15) and communications between the party's attorney and the expert witness, regardless of the form of the communications. (16) The rule did, however, carve out several exceptions to the protection of attorney-expert communications, most notably when communications "identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed" or to "identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed." (17) In light of the requirement that expert reports must contain facts and data considered by the expert, this exception becomes more difficult to apply when the expert's draft report contains such facts and data. The question then becomes which provision has superiority. A recent Defense Counsel Journal article explained the potential trap:

    an 'unanswered question is whether counsel will...

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