A Guide to Discovery Rules

Federal and State-by-State Guidelines that Expert Witnesses Should Know (Part I of II)

Navigating the maze of discovery rules in economic damage cases can be daunting. Professionals often face a patchwork of regulations across jurisdictions. This two-part article provides an overview of key discovery rules applicable in federal courts and each of the 50 U.S. states.

Navigating the maze of discovery rules in economic damage cases can be daunting. Professionals often face a patchwork of regulations across jurisdictions. This two-part article provides an overview of key discovery rules applicable in federal courts and each of the 50 U.S. states. The discussion is on testifying experts, as their communications and work product are subject to specific discovery rules.

By contrast, communications with consulting experts are generally more broadly protected by attorney-client privilege and work product doctrine. However, consulting experts should be mindful that if their role shifts to testifying expert, prior communications that fall within the categories set out in Federal Rule 26(b)(4)(c) may become discoverable. Given the complexity and variability of discovery rules, it is advisable to consult with legal counsel or a legal research specialist for guidance specific to your engagement(s).

Federal Courts

Discovery in federal courts is governed by the Federal Rules of Civil Procedure (FRCP), particularly Rules 26 through 37. Key principles include:

• Scope of Discovery (Rule 26): Parties may obtain discovery regarding any non-privileged matter relevant to any party’s claim or defense. This includes electronically stored information, documents, e-mails, meeting notes, draft reports, and other written documents.[1]
• Expert Witness Disclosures: Rule 26(a)(2) requires detailed disclosures for expert testimony, including the basis for opinions and the data considered.[2]
• Limitations on Discovery: The court may limit discovery if it is unreasonably cumulative, can be obtained from another source, or if the burden outweighs the benefit. These limitations vary by the specifics of the engagement or case; practitioners should carefully evaluate the unique circumstances and consult relevant legal guidelines.[3]
• Electronically Stored Information (ESI): Rule 34 governs the discovery of ESI, emphasizing proportionality and relevance.[4]

For detailed information, refer to the FRCP: www.uscourts.gov.

For expert witnesses working on engagements heard before Federal courts, draft expert reports are generally not discoverable. However, communications such as e-mails or meeting notes may be discoverable if they (i) relate to compensation for the expert’s study or testimony, (ii) identify facts or data provided by the attorney that the expert considered, or (iii) identify assumptions provided by the attorney that the expert relied upon. Accordingly, attorneys and experts should exercise caution with any written or oral communications that fall into these categories.

State-by-State Overview

Each state has its own set of rules governing discovery, often modeled on or influenced by the FRCP. Below is a summary of key discovery principles in each state.

Alabama

Discovery in Alabama state courts is governed by the Alabama Rules of Civil Procedure, which closely mirror the FRCP. Notable differences include state specific rules on interrogatories and depositions. Additionally, discoverable items may include e-mails, meeting notes, draft reports, and other relevant written or electronic materials, depending on the case specifics.

For expert witnesses working on engagements heard before Alabama courts, this means that e-mails, meeting notes, final expert reports, and the facts, data, and opinions underlying the expert’s testimony are generally discoverable, and that draft expert reports are generally not discoverable.[5]

Alaska

Alaska’s discovery rules include robust provisions for criminal cases, often exceeding federal standards, and comprehensive civil discovery rules under the Alaska Rules of Civil Procedure. Additionally, discoverable items may include e-mails, meeting notes, draft reports, and other relevant written or electronic materials, depending on the specific needs and context of the case.

For expert witnesses working on engagements heard before Alaska courts, this means that final expert reports and the facts or data underlying the testimony as well as e-mails and meeting notes are generally discoverable, and that draft expert reports are generally not discoverable.[6]

Arizona

Arizona adopts a broad scope of discovery under the Arizona Rules of Civil Procedure, emphasizing early disclosure requirements. Discoverable items may include electronic communications such as e-mails, meeting minutes, draft documents, and other records pertinent to the case.

For expert witnesses working on engagements heard before Arizona courts, this means that final expert reports, the facts and data considered by the expert, meeting notes, and e-mail (with the exception of communications between an attorney and an expert witness) are generally discoverable, and that draft expert reports are generally not discoverable.[7]

Arkansas

Discovery rules in Arkansas are modeled on the FRCP but include specific provisions for the timing of depositions and limitations on interrogatories. Additionally, discoverable items encompass e-mails, business records, internal memos, and drafts of relevant documents.

For expert witnesses working on engagements heard before Arkansas courts, this means that final expert reports, the facts and data considered by the expert, relevant meeting notes, and relevant e-mails are generally discoverable, and that draft expert reports are generally not discoverable.[8]

California

California’s Civil Discovery Act governs discovery in state courts. It imposes limits on depositions and interrogatories, and includes unique rules for electronic discovery. Discoverable materials include e-mails, draft reports, corporate documents, and ESI relevant to the dispute.

For expert witnesses working on engagements heard before California courts, this means that final expert reports, the facts or data considered by the expert, relevant meeting notes, and e-mails (except for protected communications between an attorney and an expert witness) are generally discoverable, and that draft expert reports are generally not discoverable.[9]

Colorado

Colorado follows its Rules of Civil Procedure, with a focus on proportionality in discovery requests and early case management requirements. Discoverable items include internal communications, meeting notes, draft financial documents, and other pertinent records.

For expert witnesses working on engagements heard before Colorado courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not protected under a work-product doctrine are generally discoverable, and that draft expert reports are generally not discoverable.[10]

Connecticut

Connecticut’s Practice Book outlines discovery rules, including unique procedures for expert disclosures and deadlines. Discoverable materials often include e-mails, working drafts, meeting summaries, and other case-relevant documents.

For expert witnesses working on engagements heard before Connecticut courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not protected under a work-product doctrine are generally discoverable, and that draft expert reports are generally not discoverable.[11]

Delaware

Delaware’s rules emphasize corporate litigation, reflecting its role as a hub for business disputes, with extensive provisions for electronic discovery. Discoverable items include board meeting notes, internal memos, e-mails, and ESI pertinent to the litigation.

For expert witnesses working on engagements heard before Delaware courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not protected under a work-product doctrine are generally discoverable, and that draft expert reports are generally not discoverable.[12]

Florida

Florida Rules of Civil Procedure govern discovery, including specific requirements for discovery conferences and disclosures. Discoverable materials include e-mails, financial records, draft documents, and other written communications.

For expert witnesses working on engagements heard before Florida courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[13]

Georgia

Georgia’s Civil Practice Act includes state-specific rules for depositions, interrogatories, and ESI. Discoverable items may include e-mails, project plans, meeting minutes, and draft analyses relevant to the claims or defenses.

For expert witnesses working on engagements heard before Georgia courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[14]

Hawaii

Hawaii follows discovery rules under its Rules of Civil Procedure, emphasizing proportionality and relevance. Discoverable materials typically include e-mails, draft policies, internal memos, and other ESI.

For expert witnesses working on engagements heard before Hawaii courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[15]

Idaho

Idaho’s discovery rules mirror the FRCP, with additional guidance on expert disclosures and depositions. Discoverable materials include e-mails, draft documents, spreadsheets, and meeting notes.

For expert witnesses working on engagements heard before Idaho courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[16]

Illinois

Illinois Supreme Court Rules govern discovery, including detailed requirements for expert witness disclosures and pretrial procedures. Discoverable items include internal communications, e-mail correspondence, draft reports, and business plans.

For expert witnesses working on engagements heard before Illinois courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[17]

Indiana

Discovery in Indiana state courts follows the Indiana Rules of Trial Procedure, with a focus on timely and efficient discovery processes. Discoverable materials include e-mails, meeting minutes, draft proposals, and other relevant records.

For expert witnesses working on engagements heard before Indiana courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[18]

Iowa

Iowa Rules of Civil Procedure govern discovery, with specific provisions for ESI and expert witness disclosures. Discoverable items include e-mails, project reports, meeting summaries, and draft plans.

For expert witnesses working on engagements heard before Iowa courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[19]

Kansas

Kansas follows the Kansas Rules of Civil Procedure, which incorporate many FRCP principles but include unique state-specific rules. Discoverable materials include e-mails, contracts, draft proposals, and other written or electronic documents relevant to the case.

For expert witnesses working on engagements heard before Kansas courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[20]

Kentucky

Kentucky’s discovery rules are part of its Rules of Civil Procedure, emphasizing relevance and proportionality. Discoverable items include e-mails, meeting notes, draft contracts, and other case-relevant documents.

For expert witnesses working on engagements heard before Kentucky courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[21]

Louisiana

Louisiana’s discovery rules are outlined in the Louisiana Code of Civil Procedure, including provisions for expert disclosures and depositions. Discoverable materials include e-mails, draft business records, project summaries, and other related documents.

For expert witnesses working on engagements heard before Louisiana courts, this means that final expert reports, the facts or data considered by the expert, meeting notes, and e-mails that are not privileged are generally discoverable, and that draft expert reports are generally not discoverable.[22]

Maine

Maine follows discovery rules under its Rules of Civil Procedure, which align closely with the FRCP. Discoverable items include e-mails, draft financial records, meeting minutes, and other relevant documents.

For expert witnesses working on engagements heard before Maine courts, this means that final expert reports, meeting notes, and e-mails that are not privileged are generally discoverable. Furthermore, Maine Rule of Civil Procedure 26(b)(4) allows parties to obtain discovery regarding experts expected to testify at trial, including the subject matter, facts, and opinions to which the expert is expected to testify. Draft expert reports are generally not discoverable.[23]

In the second of this two-part article, the authors discuss the state discovery rules for Massachusetts to Wyoming and federal rules.

[1] Source: For additional information, please refer to the Federal Rules of Civil Procedure: https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-civil-procedure

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Source: For additional information, please refer to the Alabama Judicial System Website: https://judicial.alabama.gov/

[6] Source: For additional information, please refer to the Official Alaska Judiciary Website: https://courts.alaska.gov/

[7] Source: For additional information, please refer to the Arizona Judicial Branch Website: https://www.azcourts.gov/

[8] Source: For additional information, please refer to the Arkansas Judiciary Website: https://arcourts.gov/

[9] Source: For additional information, please refer to the Judicial Branch of California Website: https://courts.ca.gov/

[10] Source: For additional information, please refer to the Colorado Judicial Branch Website: https://www.coloradojudicial.gov/

[11] Source: For additional information, please refer to the State of Connecticut Judicial Branch Website: https://www.jud.ct.gov/

[12] Source: For additional information, please refer to the Delaware Courts Judicial Branch Website: https://courts.delaware.gov/

[13] Source: For additional information, please refer to the Florida Courts Website: https://www.flcourts.gov/

[14] Source: For additional information, please refer to the Judicial Council of Georgia Administrative Office of the Courts Website: https://georgiacourts.gov/

[15] Source: For additional information, please refer to the Hawai’i State Judiciary Website: https://www.courts.state.hi.us/

[16] Source: For additional information, please refer to the State of Idaho Judicial Branch Website: https://isc.idaho.gov/

[17] Source: For additional information, please refer to the Illinois Courts Website: https://www.illinoiscourts.gov/

[18] Source: For additional information, please refer to the Indiana Judicial Branch Website: https://www.in.gov/courts/

[19] Source: For additional information, please refer to the Iowa Judicial Branch Website: https://www.iowacourts.gov/

[20] Source: For additional information, please refer to the Kansas Judicial Branch Website: https://kscourts.gov/

[21] Source: For additional information, please refer to the Kentucky Court of Justice Website: https://www.kycourts.gov/Pages/index.aspx

[22] Source: For additional information, please refer to the Louisiana Supreme Court Website: https://www.lasc.org/

[23] Source: For additional information, please refer to the State of Maine Judicial Branch Website: https://www.courts.maine.gov/

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Michael D. Pakter, CPA, CFF, CGMA, CFE, CVA, MAFF, CA, CIRA, CDBV, has more than 45 years of experience in forensic accounting, investigations, and litigation services, including more than 25 years of experience in economic damages and business valuations. State, federal, and bankruptcy courts have recognized him as an expert in forensic accounting, economic damages, business valuation, alter ego, marital dissolution, and bankruptcy core proceedings.

Mr. Pakter can be contacted at (773) 671-1950 or by e-mail to mpakter@litcpa.com.

Miranda Kishel, MBA, CVA, CBEC, MAFF, MSTCA, a Manager at Gould & Pakter Associates, LLC, supports the completion of business valuations, business calculations, forensic accounting, economic damages, and asset tracing engagements, focusing on in-depth financial analysis including modeling, forecasting, research, and report preparation. Her previous experience lies in small business consulting, commercial lending, accounting, real estate development, and economic development.

Ms. Kishel can be contacted at (218) 404-4877 or by e-mail to mkishel@litcpa.com.