Discovery: Disclosure of Expert Testimony & Pretrial Disclosure

In a recent post, I posted about the initial disclosures required of parties as part of discovery. This post will focus on an additional two types of required disclosure: disclosure of expert testimony, and pretrial disclosure.

First, a party must disclose to other parties the identities of expert witnesses expected to be used at trial. If the expert has been specially retained to provide expert testimony or if the expert regularly gives expert testimony as an employee of the party then there is an additional requirement that the disclosure of the expert include a report prepared and signed by the expert stating the expert's qualifications, the opinions to be expressed, the basis of those opinions, and a list of cases in which the expert has testified over the previous 4 years. Also required is the compensation of the expert, among other items. If these additional disclosure rules do not apply to a given expert then only the following must be disclosed: the identity of the expert; the subject matter on which the expert is expected to present evidence; and a summary of the facts and opinions to which the expert is expected to testify.

These disclosures must be made at the time directed by the court or in the absence of such directives, any time period stipulated by the parties provided the time is at least 90 days before trial. If the evidence is intended solely to rebut another party's disclosure of expert testimony, it must be made within 30 days after disclosure of the evidence rebutted.

Also required are pretrial disclosures. At least 30 days before trial a party must disclose the following: the witnesses the party expects to call at trial; the witnesses the party will call if the need arises; the witnesses whose testimony will be presented by deposition along with a transcript of the pertinent portions of the deposition; and a list of documents or exhibits the party expects to offer or might offer if needed.

Within 14 days after this disclosure, the recipient party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. Such objections are waived if not made in that time period except for objections that the evidence is irrelevant, prejudicial, or confusing under Federal Rules of Evidence 402 and 403.