Ohio Rules Regarding Expert Witness Depositions and Interrogatories


Ohio rules and cases are not explicit regarding the availability of deposition for experts. However, it seems that most authorities on Ohio law treat the vague reference to further discovery of testifying experts in Rule 26(B)(5)(b) of the Ohio Rules of Civil Procedure as making depositions available for testifying experts. William W. Milligan, 4-26 Ohio Forms of Pleading and Practice § Civil Rule 26(B) (2014). Ohio rules and case law do not limit the length of depositions. Experts in Ohio may not be subject to interrogatories, as they may only be served on the parties themselves.


Ohio Expert Witness Reports and Disclosures Rules


Under Rule 26(B)(5) of the Ohio Rules of Civil Procedure, as in most states, experts are split into two categories for purposes of discovery—experts expected to be called as witnesses at trial and experts retained for consulting purposes in anticipation of or preparation for litigation. Discovery of experts retained only for consulting purposes is available only upon a showing that the party seeking discovery would be unable to obtain information on the same subject without undue hardship or other exceptional circumstances under which denial of discovery would result in manifest injustice. The staff notes to this rule provide the example of an expert being the only expert in his particular field as circumstances under which discovery of a consulting expert may be permitted.


Conversely, Rule 26(B)(5)(b) provides that a party must provide the identity of all experts the party expects to call at trial and to state the subject matter on which they are expected to testify upon interrogatory from the opposing party.


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


Distinguishing it from many other states, Ohio as very clear rules regarding the discoverability of draft reports and attorney-expert communications. Rule 26(B)(5)(c) of the Ohio Rules of Civil Procedure provides that experts’ draft reports, “regardless of the form in which the draft is recorded,” are protected from discovery. Rule 26(B)(5)(d) provides that attorney-expert communications are also protected except under three circumstances: (1) when they relate to the expert’s compensation for the study or testimony; (2) when they identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; and (3) when they identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.