Vermont Bar Association Seminar Materials Civil Procedure Amendments: Disclosures September 28, 2018 Equinox Resort Manchester Village, VT Speakers: Allan Keyes, Esq. Jim Dumont, Esq.
FRIDAY September 28, 2018 8:45-10:15 (1.5 MCLE Credits) 2c) *Civil Procedure Amendments: Disclosures The session is intended to educate practitioners about, and obtain comments on, the changes to VRCP 26 which the Advisory Committee has proposed. The changes address expert witness disclosures, disclosure of rebuttal experts, and broadening the duty to supplement so as to include expert deposition and party deposition testimony. Speakers: Allan Keyes Esq., and Jim Dumont, Esq.
Advisory Committee on the Rules of Civil Procedure ABOUT THE COMMITTEE The Supreme Court adopts the rules of practice and procedure for all state courts. The Supreme Court appoints advisory committees to assist in keeping the rules up-to-date. The tasks of the Advisory Committee on the Rules of Civil Procedure include: Reviewing the operation and effectiveness of the civil, appellate, and small claims rules Receiving proposals to change rules or adopt new rules Making proposals to change rules or adopt new rules and sending these proposals to the Supreme Court Sending proposed rules to the bar and public for comment and, when required, holding public hearings on proposed rules or rule changes Receiving comments Once a proposal has been sent out for comment, the committee may make further changes or may recommend that the Supreme Court adopt the change. The Supreme Court is responsible for promulgating any amendment. The committee includes: Two superior judges One superior court clerk The chair of the Vermont Bar Association s corresponding standing committee Seven other members appointed by the Supreme Court The Supreme Court designates the chair of the committee. The Supreme Court also appoints a reporter for the committee. The reporter revises or drafts rules at the request of the committee or the Supreme Court. The reporter's notes, which are published in the rules, explain the history and application of the rules. Committee Members Allan Robinson Keyes, Esq. Honorable Harold E. Eaton, Jr. Chair L. Kinvin Wroth Reporter Gregory Weimer, Esq. Honorable Helen M. Toor Honorable Dennis R. Pearson Eric B. Avildsen, Esq. James Dumont, Esq. Eileen Blackwood, Esq. Navah Spero, Esq. Anne Damone Karen McAndrew, Esq. Bonnie J. Badgewick, Esq. CONTACT INFORMATION Liaison from Supreme Court VBA Member Superior Judge Superior Judge Member Member Member Member Superior Court Clerk Member Member Allan Keyes, Esq., Chair Advisory Committee on the Rules of Civil Procedure Ryan, Smith & Carbine PO Box 310 Rutland, VT 05202 Email: ark@rsclaw.com 1
Proposed Amendments to V.R.C.P. 16.2 and 26 The proposed amendment to Rule 16.2 adds a reference to the use of a scheduling order provided in the proposed simultaneous amendment of V.R.C.P. 26(b)(5)(A)(i)-(v) and conforms the designation of the provisions of the rule to the format of other rules. The proposed amendments to V.R.C.P. 26(b)(4) and (5) clarify their provisions and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure and the realities of current Vermont practice. The proposed amendments to V.R.C.P. 26(b)(5)(A) provide for automatic pretrial disclosure of all witnesses who will be offered as experts and the nature of their expected testimony. The proposed amendment to V.R.C.P. 26(b)(5)(A)(i) adapts language from the federal rule requiring automatic disclosure of all opinion witnesses qualified and testifying as experts under V.R.E. 702, 703, and 705 who may be used at trial. This disclosure requirement does not extend to lay opinion witnesses testifying under V.R.E. 701. The proposed amendment to V.R.C.P. 26(b)(5)(A)(ii) departs significantly from both prior Vermont practice and F.R.C.P. 26(a)(2) by giving the same treatment to witnesses retained or employed solely to provide expert testimony and to fact witnesses with expert qualifications. The amended rule provides a simplified report requirement for all categories of experts. The proposed amendment to Rule 26(b)(5)(A)(iii) provides that the disclosures under subparagraphs (A)(i) and (ii) must ordinarily be made by stipulation or a scheduling order under Rule 16.2. Otherwise, the disclosures must be made by the earlier of the trial date or the date by which the case is to be ready for trial, except that evidence attacking another party s evidence must be made within 30 days of that party s disclosure. The proposed amendments to Rules 26(b)(5)(A)(iv) and (v) adapt the provisions of former Rules 26(b)(5)(A)(i) and (iii) to the disclosure requirements of amended Rule 26(b)(5)(A). Minor conforming amendments have been made in Rules 26(b)(5)(B), (C), and (E). No amendments have been made to Rule 26(b)(5)(D). The proposed amendment to V.R.C.P. 26(e) adapts provisions of F.R.C.P. 26(e) as most recently amended in 2007, and makes it consistent with the simultaneous amendments to V.R.C.P. 26(b)(5). The new proposed V.R.C.P. 26(e)(1) follows the federal rule in spelling out a general duty to supplement both a disclosure made under V.R.C.P. 26(b)(5) and a response to other forms of discovery. The new proposed V.R.C.P. 26(e)(2) departs from the federal rule by including party-deponents within the duty to supplement.
V.R.C.P. 26(b)(4) (1971) 4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b) (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify [etc.],
Fed.R.Civ.P. 26(a)(2) (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this 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. The report 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 that 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. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
Fed.R.Civ.P. 26(b)(4) (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. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
V.R.C.P. 26(b)(4) (4) Trial Preparation: Experts. (A) Identification and Deposition of an Expert Who May Testify. (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions as to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) A party may depose any person who has been identified in an answer to an interrogatory posed pursuant to subparagraph (A)(i) as an expert whose opinions may be presented at trial. (iii) A party may obtain by request for production or subpoena any final report of the opinions to be expressed by an expert who has been identified in an answer to an interrogatory posed pursuant to subparagraph (A)(i) as an expert whose opinions may be presented at trial, as well as the basis and reasons for the opinions and any exhibits that will be used to summarize or support them. (B) Trial-Preparation Protection for Draft Disclosures and Certain Reports. Rule 26(b)(3) protects drafts of any disclosure of an expert that is required under subparagraph (A)(i) and drafts of any report prepared by such an expert, regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Certain Expert Witnesses. Rule 26(b)(3) protects communications between the party's attorney and any expert who has been identified in an answer to an interrogatory posed pursuant to subparagraph (A)(i) as an expert whose opinions may be presented at trial, 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. (D) Expert Employed Only for Trial Preparation. A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, (i) the judge shall require that the party seeking discovery pay any expert who has been identified under subparagraph (A)(i) a reasonable fee for time spent in responding to discovery under this paragraph (4); and (ii) with respect to discovery obtained under subparagraph (D) of this paragraph the judge shall also require the party seeking discovery to pay the other party a fair portion of the fees and expenses incurred by the latter party in obtaining facts and opinions from the expert.
V.R.C.P. 26(e) (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement or correct the response to include information thereafter acquired with respect to the following matters if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing: (1) Any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters; and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony. (2) Any other prior response to an interrogatory, request for production, or request for admission. (3) Any matter by order of any superior judge, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses
Fed.R.Civ.P. 26 (e) e) SUPPLEMENTING DISCLOSURES AND RESPONSES. (1) In General. A party who has made a disclosure under Rule 26(a) or who has responded to an interrogatory, request for production, or request for admission must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the pwarty's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.