Mississippi Rules Regarding Expert Witness Depositions and Interrogatories
There is no general right to depose expert witnesses in Mississippi, even those that are expected to testify at trial. However, Rule 26(b)(4)(A)(ii) of the Mississippi Rules of Civil Procedure provides that, upon motion, a court may order discovery beyond the generally allowed means, discussed in the following section, which may include deposition. Also, parties often mutually agree to expert depositions. See, e.g., Knotts by Knotts v. Hassell, 659 So. 2d 886, 890 (Miss. 1995). There is no specific time limit for depositions in Mississippi, but Rule 30(b)(3) provides that the court may increase or decrease the time for taking a deposition upon a showing of cause. Lastly, it should be noted that the Mississippi Supreme Court has requested comments on the Advisory Committee on the Rules’ proposed amendments to Rule 26, which, among other things, would allow for the depositions of testifying experts following the disclosures discussed in the following section. The deadline for comments on these proposed changes was May 15, 2015, and it appears that the Mississippi Supreme Court has not yet taken any action in response to the proposals.
Experts generally may not be subject to interrogatories in Mississippi, 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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Mississippi Expert Witness Reports and Disclosures Rules
The extent of required disclosures for experts in Mississippi 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 Mississippi Rules of Civil 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. The exceptional circumstances standard imposes “a heavy burden” on a party seeking discovery of a non-testifying expert. General Motors Corp. v. Jackson, 636 So. 2d 310, 314 (Miss. 1994).
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 Mississippi
Although Rule 26(b)(3) of the Mississippi Rules of Civil Procedure codifies the work product doctrine, protecting against the disclosure of an attorney’s mental impressions and opinions, neither the Mississippi Rules nor cases currently address the effect that communication to a testifying expert of materials, which otherwise would be protected work product, has on discoverability. However, the Advisory Committee on the Rules has also proposed amending Rule 26 to expressly protect attorney-expert communications from discovery, except for those that relate to the expert’s compensation, identify information that the attorney provided and the expert considered in forming his or her opinion, or identify assumptions that the attorney provided and the expert relied upon in forming his or her opinion. As with the proposed amendments discussed in the first section, the Mississippi Supreme Court has not yet taken any action in response to these proposals since the May 15, 2015 deadline for comments.