Kentucky Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 26.02(4)(a)(ii) of the Kentucky Rules of Civil Procedure, experts that a party expects to call a trial may be subject to deposition after they are identified in the interrogatories discussed in the following section. The Kentucky Rules do not impose a specific time limit on such depositions, but Rule 30.02(3) provides that the court may increase or decrease the time allowed for deposition upon a showing of cause. Experts generally may not be subject to interrogatories in Kentucky, 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.
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Kentucky Expert Witness Reports and Disclosures Rules
The extent of disclosures required for experts depends on whether the expert is expected to be called at trial or was retained purely for consulting purposes. Under Kentucky Rule 26.02(4)(b), information regarding the latter group of experts is not discoverable absent 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. Trial judges have great discretion in determining what constitutes exceptional circumstances, McClees v. Combs, 2009 Ky. App. Unpub. LEXIS 907, at *9 (Ky. Ct. App. 2009), and the dearth of cases relating to this issue suggests that a claim of exceptional circumstances is rarely made.
For experts expected to be called, a party may, through interrogatories, require its opponent to disclose the identities of such experts, the subject matter on which each expert is expected to testify, the substance of the facts and opinions to which each expert is expected to testify, and a summary of the basis for these opinions. Once identified, the opponent may then depose these experts as discussed above. The Kentucky Rules of Civil Procedure does not expressly require parties to provide reports from their testifying experts to their opponents. However, the preparation of expert reports is still common in Kentucky. See Whitney Frazier Watt & Julie M. McDonnell, Kentucky Civil Practice at Trial § 2.16 (2008).
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Kentucky
Kentucky has codified the work product doctrine, protecting against the disclosure of attorney mental impressions and theories prepared in anticipation of litigation, in Rule 26.02(3). However, it is unclear in Kentucky whether the communication of privileged materials or information from an attorney to an expert who is expected to testify at trial acts as a waiver of work product protection and renders such materials discoverable. No provision in the Kentucky rules addresses this issue, and it appears that the Kentucky courts have not yet decided it. In 2006, the Kentucky Supreme Court had the opportunity to resolve the issue, but expressly declined to do so and decided the case on other grounds. CSX Transp., Inc. v. Ryan, 192 S.W.3d 345, 349 (Ky. 2006) (“We need not address CSX’s argument that by designating Dr. Morrow as a testifying expert, any work product privilege was permanently waived under Rule 26.02(4)(a)(i).”).