Indiana Rules Regarding Expert Witness Depositions and Interrogatories 

There is no general right to depose expert witnesses in Indiana, even those that are expected to testify at trial. However, Rule 26(b)(4)(A)(ii) of the Indiana Rules of Trial Procedure provides that, upon motion, a court may order discovery beyond the generally allowed means, discussed in the following section, which may include deposition. Note also that it is common practice in Indiana for parties to agree to depositions of the experts on both sides, especially medical experts. See, e.g., Brown v. Terre Haute Regional Hosp., 537 N.E.2d 54 (Ind. Ct. App. 1989); see also Indiana Pleading and Practice ¶  26.13 (2015). There is no specific time limit for depositions in Indiana, but Rule 30(b)(3) provides that the court may increase or decrease the time for taking a deposition upon a showing of cause. Also, experts generally may not be subject to interrogatories in Indiana, as they are only served on the parties. As discussed in the following section, though, these interrogatories can require disclosures about experts and, accordingly, expert participation in responding to certain interrogatories may be beneficial. 

Indiana Expert Witness Reports and Disclosures Rules 

The extent of required disclosures for experts in Indiana depends on whether the expert is expected to testify at trial or was retained only for consulting purposes. For the latter category of experts, Rule 26(b)(4)(B) of the Indiana Rules of Trial Procedure provides that discovery may only be had 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.

For an expert expected to be called at trial, Rule 26(b)(4)(A)(i) provides that a party can be required to disclose the identity of such expert, the subject matter on which he or she is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the basis for these opinions upon interrogatory from the opposing party. Again, under Rule 26(b)(4)(A)(ii), discovery by more intrusive means, such as a document production request, may be had upon motion. 

Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Indiana 

Indiana courts have made clear that attorney-expert communications are privileged “as long as 1) the communication involves the subject matter about which the attorney was consulted and 2) the [expert] was retained by the attorney for the purpose of assisting the attorney in rendering legal advice to or conducting litigation on behalf of the client.” Witham Mem. Hosp. v. Honan, 706 N.E.2d 1087, 1090-91 (Ind. Ct. App. 1999) (citing Brown v. State, 448 N.E.2d 10, 14 (Ind. 1983)). Such communications include draft reports and notes. Id. at 1091-92.