Alaska Rules Regarding Expert Witness Depositions and Interrogatories

Under Rule 26(b)(4) of the Alaska Rules of Civil Procedure, experts whose opinions might be presented at trial may be deposed. Most such experts are required to submit reports under Rule 26(a)(2)(B), and a party may not depose such an expert until this report is provided. Experts who are not expected to be called at trial may only be subject to depositions or interrogatories if the court finds that exceptional circumstances exist. A party seeking to demonstrate exceptional circumstances carries a heavy burden, Barkwell v. Sturm Ruger Co., 79 F.R.D. 444 , 446 (D. Alaska 1978), and generally exceptional circumstances will only be found if “there [is] an obvious substantial need for such statements, and there [would be] an inherent undue hardship in requiring the litigant to obtain the ‘substantial equivalent’” from another source. Van Alen v. Anchorage Ski Club, 536 P.2d 784 (Alaska 1975). Any experts subject to discovery under this rule must be compensated with a reasonable fee.

Under Rule 30(c)(2) of the Alaska Rules of Civil Procedure, oral depositions shall not exceed six hours for expert witness, unless the court finds that additional time is necessary. Anyone who delays or impedes the deposition may be subject to sanctions from the court including the reasonable costs and attorney’s fees incurred by the parties due to the delay. 

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Alaska Expert Witness Reports and Disclosures Rules

Under Rule 26(a)(2) of the Alaska Rules of Civil Procedure, both parties in a case must disclose the identities of any experts who might be used at trial. For most experts, this disclosure must include a written report, prepared and signed by the expert, which provides a comprehensive summary of all of the opinions that the expert will testify to and the reasons for those opinions, including the data or information used in reaching those opinions and any exhibits that the expert will present. Under Rule 703 of the Alaska Rules of Evidence, the information relied on by the expert does not have to be admissible in evidence, but it must be information that is commonly considered by experts in the particular field. The report must also provide the compensation that the expert will receive for the case, the qualifications of the expert, a list of all publications authored by the expert in the ten years prior to the case, and a list of all cases in which the expert has testified either at trial or through deposition in the four years prior to the case. Under Rule 26(e) of the Alaska Rules of Civil Procedure, the expert has a duty to correct or supplement any information provided either by the expert’s report or through deposition that the expert discovers to be incomplete or incorrect.

Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Alaska

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, the protection this privilege provides in the case of attorney-expert communications is very limited, only applying to communications that do not involve any facts relevant to the case. The Alaska Supreme Court has explained that expert’s observations and conclusions, whether in a report or communicated to the lawyer by some other means, are facts that constitute evidence, and that communication of those facts to the lawyer do not remove them from the scope of permissible discovery. Security Indus. v. Fickus, 439 P.2d 172, 177 (Alaska 1968).

Other Expert Witness Rules in Alaska

Under Rule 26(a)(2)(D) of the Alaska Rules of Civil Procedure and Rule 702(b) of the Alaska Rules of Evidence, a maximum of three independent expert witnesses can testify regarding the same issue in a case. An independent expert witness is one who is required to provide the written report discussed in the preceding section. This includes all experts retained or specially employed to give expert testimony in the case and those who regularly give expert testimony for a particular party.

Under Rule 702(c) of the Alaska Rules of Evidence and Alaska Statute 09.20.185, to testify as an expert in a professional negligence case, a witness must be licensed as a professional in any state in the U.S., have training and experience in the same field or profession as the defendant or in an area directly related to the issue of the case, and be certified by a board recognized in Alaska as having expertise in that field or issue. These rules do not apply if no such board has been recognized in Alaska.