Alabama Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 26(b)(5)(A) of the Alabama Rules of Civil Procedure, a party may generally only obtain discovery of the information and opinions of experts expected to be called at trial by interrogatories directed to the opposing party. Through these interrogatories, a party can require its opponent to identify the experts it expects to call at trial, state the subject matter of the testimony, and state the facts and opinions of the expert and the reasons for those stances. A party can seek discovery of these experts through other means, such as deposition, by motion, but the Committee Comments to the Rule explain that a court should not grant the motion unless the answers to the interrogatories were inadequate. Therefore, interrogatories are the most burdensome form of discovery that experts may be subject to in Alabama unless they fail to respond adequately to interrogatories.
If a court does grant further discovery, the expert can demand fees and expenses from the party seeking the discovery. Additionally, under the Committee Comments to Rule 30 of the Alabama Rules of Civil Procedure, if there is a deposition, the expert may choose to limit each session to five (5) hours per day, excluding breaks and objections, unless the court orders otherwise.
Under Rule 26(b)(5)(B) of the Alabama Rules of Civil Procedure, the information and opinions of experts specially employed in preparation for, but not expected to be used at, trial can only be discovered upon a showing of exceptional circumstances. The Rule defines exceptional circumstances as existing when it would be impracticable for a party to obtain the sought after facts or opinions from another source. In Parker v. Mobile Gas Serv. Corp., 123 So. 3d 499, 515 (Ala. 2013), the Alabama Supreme Court explained this further, stating:
The party seeking discovery may meet this exceptional circumstances standard in one of two ways. First, the moving party may show that the object or condition at issue is destroyed or has deteriorated after the non-testifying expert observes it but before the moving party’s expert has an opportunity to observe it. Second, the moving party may show there are no other available experts in the same field or subject area.
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Alabama Expert Witness Reports and Disclosures Rules
The Alabama Rules of Civil Procedure do not require a written report “prepared and signed by the expert” like Rule 26(a)(2) of the Federal Rules of Civil Procedure, which many states have adopted, does. Despite this, as explained in the previous section, a party can require its opponent to state the substance of its expert’s opinion and the facts and reasons underlying that position through interrogatories prior to trial. Additionally, Rule 705 of the Alabama Rules of Evidence and the corresponding Advisory Committee Notes make clear that experts are required to disclose all data and information used in coming to their conclusions if asked on cross-examination. Further, the Advisory Committee explains that although this information does not have to be disclosed before the expert can testify, it expects lawyers calling experts to continue to disclose the information underlying an expert’s testimony prior to trial on the grounds that doing so is likely to improve the expert’s credibility.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Alabama
Rule 26(b)(3) of the Alaska Rules of Civil Procedure provides that “[i]n ordering discovery . . . the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” However, this does not apply to attorney-expert communications. The Alabama Supreme Court has held that the justifications for attorney-client privilege do not extend to the attorney-expert relationship and that no communication is privileged between an attorney and an expert. State v. Chicago Bridge & Iron Co., 261 So. 2d 882, 885 (Ala. 1972). The seemingly sweeping effect of this holding is tempered, though, by Rule 26(b)(4) of the Alabama Rules of Civil Procedure, discussed above, which explains the type of information relating to an expert that a party can require its opponent to disclose. A party cannot require disclosure of lawyer-expert communications beyond the scope of the rule absent a court order for further discovery. See Ex parte Tuscaloosa County, 825 So. 2d 729, 733-34 (Ala. 2001).