Tuesday, January 6, 2015

Discovery Dispute Round Two

Yesterday I talked about a discovery dispute in the Mississippi Rules of Civil Procedure.  This is a kind of part two of that.  Rule 26 also provides that:

(A) (i)  A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Now, that can seem pretty straight forward.  However, there are two views on it.  Defense attorneys often take the position that the only way to conduct discovery on an expert is through interrogatories without leave of court.  Plaintiff attorneys like myself take the position that you can use subpoenas and other means to obtain discovery of an expert and that the rule only applies to their opinions in the case.  To me, the defense position in this is just wrong.  The best way I have found to get around the problem is to ask any information you need on bias and such in the interrogatory.  If it is not provided in the interrogatory, file a motion to allow other means to get the information.  I don't think it is necessary but it completely kills any argument the defendant has.  Also, judges hate dealing with discovery disputes. 

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