New Jersey Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 4:10-2(d)(2) of the New Jersey Court Rules, experts who are required to furnish reports (as described in the following section) may be subject to deposition as to the opinions stated in their reports. See also Pontidis v. Shavelli, 686 A.2d 1275, 1277 (N.J. Super. Ct. App. Div. 1997). There is no specific time limit for depositions in New Jersey, but Rule 4:14-2(b) provides that the court may increase or decrease the time for taking a deposition upon a showing of cause. Experts are generally not subject to interrogatories in New Jersey as they can only be served on the parties. However, as explained in the following section, experts expected to testify at trial can be required to provide an expert report upon interrogatory to the retaining party.
New Jersey Expert Witness Reports and Disclosures Rules
As indicated above, the extent of permissible expert discovery in New Jersey depends on whether the expert is expected to testify at trial or was retained purely for consulting purposes and is not expected to testify. Under Rule 4:10-2(d)(3) of the New Jersey Court Rules, discovery of consulting experts may only be had upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. This is a difficult showing to make, and New Jersey courts will generally only find exceptional circumstances to be present in situations where (1) “the object or condition observed by the non-testifying [expert] is no longer observable by an expert of the party seeking discovery,” or (2) “it is possible to replicate expert discovery on a contested issue, but the costs would be judicially prohibitive.” In re Long Branch Manufactured Gas Plant, 907 A.2d 438, 441 n.6 (N.J. Super. Ct. App. Div. 2006) (quoting Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 175 F.R.D. 34, 44 (S.D.N.Y.1997)).
On the other hand, under Rule 4:10-2(d)(1) a party can require its opponent to disclose the names and addresses of the experts it expects to call at trial through interrogatories. These interrogatories may also require such experts to furnish a copy of their reports, which, under Rule 4:17-4(e), must contain a complete statement of the expert’s opinions and the rationale for those opinions; the facts and data considered in forming the opinions; the qualifications of the expert, including a list of all publications authored by the witness within the preceding ten years; and whether compensation has been or is to be paid for the report and testimony and, if so, the terms of the compensation. See also Ponden v. Ponden, 863 A.2d 366, 369 (N.J. Super. Ct. App. Div. 2004) (describing an inadequate expert report, which contained only a conclusory, “net opinion”).
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in New Jersey
Under Rule 4:10-2(d)(1) of the New Jersey Court Rules, discovery of attorney-expert communications is limited to the facts and information evaluated by the expert in producing the report. All other attorney-expert communications that are part of “the collaborative process in preparation of the report, including all preliminary or draft reports produced during this process,” are considered trial preparation materials. Under Rule 4:10-2(c), such materials are discoverable “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”