West Virginia Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 26(b)(4)(A)(ii) of the West Virginia Rules of Civil Procedure, experts whose opinions will be presented at trial may be deposed. The West Virginia Rules do not provide a time limit for depositions, instead allowing courts to limit the time allowed by order or local rule. However, West Virginia Rule 30(d)(2) requires courts to allow additional time for a deposition where necessary for a fair evaluation of the deponent. Experts generally may not be subject to interrogatories in West Virginia, 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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West Virginia Expert Witness Reports and Disclosures Rules
The extent of required disclosures for experts in West Virginia 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 West Virginia Rules 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. This standard imposes a “heavy burden” on parties seeking discovery of consulting experts. Michael v. Henry, 354 S.E.2d 590, 594 (W. Va. 1987) (finding no exceptional circumstances in a wrongful death case where the party seeking discovery of consulting experts “ha[d] available to them the decedent’s medical records, and . . . failed to show that they are unable to retain an expert who might interpret these records and render an opinion”).
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. Experts generally are not required to provide expert reports in West Virginia. See generally Nutter v. Maynard, 395 S.E.2d 491 (W. Va. 1990) (finding that the trial court abused its discretion in ordering the production of expert reports where the party seeking discovery had not yet filed a motion to compel completion of the interrogatories relating to the experts).
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in West Virginia
The West Virginia Rules of Civil Procedure do not address attorney-expert communications or draft expert reports. Rule 26(b)(3) provides protection for work product, though, preventing discovery of attorney mental impressions and opinions related to the case. The West Virginia courts have not yet offered guidance as to whether communication by an attorney to an expert of materials that would otherwise be protected work product renders such materials discoverable.