Michigan Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 2.302(4)(a)(ii) of the Michigan Court Rules, experts who are expected to testify at trial may be deposed. Michigan laws and rules do not specify a time limit for depositions, but Rule 2.306(B)(2) provides that the court may increase or decrease the time allowed for deposition “to best serve the convenience of the parties and witnesses.” Experts may not be subject to interrogatories in Michigan, as they can only be directed to the opposing party under Rule 2.302(4)(a)(i).
Michigan Expert Witness Reports and Disclosures Rules
Like most states, Rule 2.302(4)(a) of the Michigan Court Rules divides experts into two categories for discovery purposes—those who were retained for consulting purposes in anticipation of or preparation for litigation and those who are expected to be called at trial. Rule 2.302(4)(a)(i) provides that, for experts expected to provide trial testimony, a party must disclose the experts’ identity, the subject matter on which the expert will testify, and the facts and opinions to which the experts will testify and the bases for those opinions upon interrogatory from the opposing party.
For experts retained in anticipation of or preparation for litigation, but not expected to testify, discovery may only be obtained by court order 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. This is a high burden for a party, but the requisite showing may be made, for example, “where the subject matter is so highly specialized that the expert is uniquely qualified to testify.” 1-2.302 Michigan Civil Procedure Litigation Manual § 2.302-1 (2015); see also generally Nelson Drainage Dist. v. Bay, 470 N.W.2d 449 (Mich. Ct. App. 1991) (holding that an appraiser expert retained for consulting purposes could not be deposed despite his refusal to speak to the opposing attorney, because the opponent had already retained two other appraiser experts).
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Michiagn
Michigan caselaw provides some protection to draft reports and communications between experts and attorneys under the work-product doctrine. While the facts and opinions held by an expert are not protected work product, and must be disclosed upon interrogatory from the opposing party under Rule 2.302(4)(a)(i) of the Michigan Court Rules as discussed above, “the arrangement of those facts and opinions in a report, made directly responsive to the inquiries of an attorney, is, however, work product,” and thus protected from discovery. Franzel v. Kerr Mfg. Co., 600 N.W.2d 66, 77 (Mich. Ct. App. 1999). More simply, reports by experts made directly in response to the requests of the retaining attorney are protected from discovery. For expert reports that do not fit within this work-product protection, a party must demonstrate “substantial need” and “undue hardship” in order to receive discovery, just as it would for the discovery of other documents and tangible things prepared in anticipation of litigation under Rule 2.302(B)(3)(a).