North Carolina Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 26(b)(4) of the North Carolina Rules of Civil Procedure, experts in North Carolina may only be subject to deposition, or any form of discovery beyond interrogatories exchanged by the parties, upon court order. Such an order will be granted where a party’s disclosures regarding its experts pursuant to interrogatories appear boilerplate, standardized, superficial or are otherwise inadequate. See Green v. Maness, 316 S.E.2d 911, 915-16 (N.C. Ct. App. 1984). North Carolina rules and cases do not establish a specific time limit for depositions, but Rule 30(b)(3) of the North Carolina Rules of Civil Procedure does specify that the court may increase or decrease the time for deposition for cause.
North Carolina Expert Witness Reports and Disclosures Rules
Unlike the great majority of states, the North Carolina Rules of Civil Procedure only speak to experts that a party expects to call at trial, as compared to experts retained exclusively for consulting purposes in anticipation of or preparation for trial. For experts who are expected to testify at trial, Rule 26(b)(4)(a)(1) provides that a party may require its opponent to disclose through interrogatories the identity of each such expert, the subject matter on which the experts will testify, and the facts and opinions to which the experts will testify and the bases for those opinions. The North Carolina Rules of Civil Procedure do not provide any direction regarding experts retained only for consulting purposes. While the Federal Rules of Civil Procedure, as well as the rules in most states, provide for discovery of such experts only under very limited circumstances, the official comments to the North Carolina rule suggest that this is not the case in North Carolina, stating “[f]ailure to adopt this provision would not appear to foreclose such discovery on a proper showing under Rule 26(b)(3) or Rule 34.” However, at least one North Carolina case has held the fact that an expert was not expected to testify to be dispositive in holding that the identity of the expert could not be discovered. Mack v. Moore, 372 S.E.2d 314, 317 (N.C. Ct. App. 1988) (“If an expert (1) has facts and opinions ‘otherwise discoverable’ under Rule 26(b)(1), (2) ‘acquired or developed [such facts and opinions] in anticipation of litigation or for trial,’ and (3) is expected to be called as an expert witness at trial, Rule 26(b)(4) is controlling and his identity is discoverable. If such an expert is not expected to testify, the identity of that expert is not discoverable.”) (alterations in original); see also Sisk v. Transylvania Cmty. Hosp., Inc., 695 S.E. 2d 429 (N.C. 2010); State v. Dunn, 571 S.E.2d 650 (N.C. Ct. App. 2002). Note, though, the that the Mack court explicitly reserved the issue of “whether a party may obtain discovery pursuant to Rule 26(b)(3) of ‘documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s consultant,’” and seemed to imply that the official comment mentioned above may be instructive in such a situation. See id.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in North Carolina
North Carolina case law regarding the discoverability of draft expert reports and attorney-expert communications is very sparse. See Bradley R. Kutrow, Expert Discovery Issues in State and Federal Court: Where’s the Ballpark and What are the Ground Rules?, McGuire Woods LLP, http://www.mcguirewoods.com/news-resources/publications/BRK-Article-Kutrow.pdf (last visited Feb. 23, 2015). Experts should be cautious regarding these types of materials especially considering North Carolina’s apparent policy of allowing discovery “on a proper showing under Rule 26(b)(3) or Rule 34” when the Rules of Civil Procedure do not otherwise provide explicit guidance. See supra.