Oklahoma Rules Regarding Expert Witness Depositions and Interrogatories
Under Section 3226(B)(4)(a)(2) of Title 12 of the Oklahoma Statutes, 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. Section 3230(A)(3) limits depositions to one six-hour day unless the court orders or the parties mutually agree otherwise. Experts generally may not be subject to interrogatories Oklahoma, 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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Oklahoma 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 only for consulting purposes. Under Section 3226(B)(4)(c), 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. This “exceptional circumstances” requirement places a very heavy burden on parties seeking discovery from non-testifying experts, and as a result claims of exceptional circumstances are rarely made.
For experts expected to be called at trial, Section 3226(B)(4)(a)(1) provides that a party may, through interrogatories, require its opponent to disclose the names of such experts and an address where each can be located. Once identified, the party may then depose these experts as discussed above, and may request further information about the experts from the opponent through another interrogatory. This additional information includes 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; a summary of the basis for these opinions; the qualifications of each expert witness, including a list of all publications authored by the expert witness in the preceding ten years; the compensation to be paid to the expert; and a list of all other cases in which the expert witness has testified within the preceding four years. The Oklahoma Statutes do not expressly require parties to provide reports from their testifying experts to their opponents. However, parties may still mutually agree to exchange expert reports.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Oklahoma
Until 2012, Section 3226(B)(4)(a)(2) of the Oklahoma Statutes provided that an attorney’s communication to an expert of any materials or information that would otherwise be privileged rendered such materials discoverable without exception. Oklahoma Civil Procedure Forms § 8.01 (2015). However, this provision was amended effective November 1, 2012 to provide work product protection to attorney-expert communications, except for communications that (1) relate to the expert’s compensation, (2) identify information provided by the attorney and considered by the expert in forming the expert’s opinion, and (3) identify assumptions provided by the attorney and relied upon by the expert in forming the expert’s opinion. Note that while this provides more protection for attorney work product than the pre-2012 provision, it still leaves plenty of room for the unintentional waiver of work product protection through attorney-expert communications.