Maryland Rules Regarding Expert Witness Depositions and Interrogatories
Under Maryland Rule 2-402(g)(1)(A), experts that a party expects to call a trial may be subject to deposition. Rule 2-411 requires a party to obtain leave of court to take a deposition that will last longer than one seven-hour day. Experts generally may not be subject to interrogatories in Maryland, 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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Maryland Expert Witness Reports and Disclosures Rules
The extent of disclosures required for experts in Maryland depends on whether the expert is expected to be called at trial or was retained purely for consulting purposes. Information regarding the latter group of experts, specifically their identities, findings, and opinions, is not discoverable unless the party seeking discovery can show that it has substantial need for the information and cannot obtain facts or opinions on the same subject by other means.
For an expert expected to be called at trial, on the other hand, through interrogatories a party can require its opponent 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. Additionally, these interrogatories may require the opponent to provide any written report by the expert relating to these findings and opinions. The Committee Note to Maryland Rule 2-402(g)(1)(A) makes clear that these disclosure requirements apply to any witness who may give an expert opinion at trial, whether or not that person was retained in anticipation of litigation or for trial. For experts that were retained in anticipation of litigation or for trial, the interrogatories may further require the opponent to disclose to qualifications of the experts, to produce a list of publications by the experts, and to disclose the terms of the experts’ compensation.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Maryland
No Maryland cases have directly addressed the discoverability of draft reports by experts, attorney-expert communications, or privileged materials shared with an expert. Md. Inst. for Continuing Prof’l Educ. of Lawyers, Inc., Maryland Discovery Problems and Solutions §§ 3.37, 3.40. However, Maryland Rule 2-402(g)(1)(A) requires the production of “any written report” of a testifying expert. This language is broader than the corresponding federal rule, which requires only disclosure of “a written report—prepared and signed by the witness.” Accordingly, Maryland treatises have concluded that experts’ draft reports are most likely discoverable. See, e.g., id. at § 3.40. As for attorney-expert communications and privileged materials provided to an expert by the retaining attorney, Maryland Rule 2-402(d) provides protection against the disclosure of work product by a party or its representatives. However, Maryland courts have insinuated that attorneys must reveal any work product that they provided to an expert if it is considered by the expert in preparing to testify at trial. Id. at § 3.37. Specifically, in Blair v. State, 747 A.2d 702, 723 (2000), the court held that the work product privilege was waived by “counsel[’s] attempt to make a testimonial use of these [otherwise privileged] materials.” Blair was a criminal case and related to testimony by an attorney, rather than by an expert, but the court’s opinion favorably cited the civil case Musselman v. Phillips, 176 F.R.D. 194, 199-200 (D. Md. 1997), which held that “when an attorney communicates otherwise protected work product to an expert witness retained for the purposes of providing opinion testimony at trial—whether factual in nature or containing the attorney’s opinions or impressions—that information is discoverable if it is considered by the expert.”