Rule 76. Deposition of Expert Witnesses

(a) Availability:

(1) Depositions Upon Consent of Parties: The deposition of an expert witness upon consent of all the parties to a case shall be governed by Rule 74 rather than this Rule, except that the provisions of paragraph (e) of this Rule shall apply to such a deposition.

(2) Other Depositions: The taking of a deposition of an expert witness without consent of all the parties to a case is an extraordinary method of discovery. Such a deposition may be taken only pursuant to an order of the Court.

(b) Scope of Deposition: The deposition of an expert witness under paragraph (a)(2) of this Rule shall be limited to (1) the knowledge, skill, experience, training, or education that qualifies the witness to testify as an expert in respect of the issue or issues in dispute, (2) the opinion of the witness in respect of which the witness’s expert testimony is relevant to the issue or issues in dispute, (3) the facts or data that underlie that opinion, and (4) the witness’s analysis, showing how the witness proceeded from the facts or data to draw the conclusion that represents the opinion of the witness.

(c) When Deposition May Be Taken: A deposition of an expert witness under paragraph (a)(2) of this Rule may be taken only after a notice of trial has been issued or after a case has been assigned to a Judge or Special Trial Judge of the Court, and within the time for completion of discovery under Rule 70 (a)(2). The taking of such a deposition ordinarily will not be regarded as a ground for continuance.

(d) Procedure:

(1) In General: A party desiring to depose an expert witness under paragraph (a)(2) of this Rule shall file a written motion and shall set forth therein the matters specified in subparagraph (2). The Court shall take such action on the motion as it deems appropriate.

(2) Content of Motion: Any motion seeking an order authorizing the deposition of an expert witness under paragraph (a)(2) of this Rule shall set forth the following:

(A) the name and address of the witness to be examined;

(B) a statement describing any books, papers, documents, or tangible things to be produced at the deposition of the witness to be examined;

(C) a statement of issues in controversy to which the expected testimony of the expert witness, or the document or thing, relates, and the reasons for deposing the witness;

(D) the time and place proposed for the deposition;

(E) the officer before whom the deposition is to be taken;

(F) any provision desired with respect to the payment of the costs, expenses, fees, and charges relating to the deposition (see paragraph (g)); and

(G) if the movant proposes to videotape the deposition, then a statement to that effect and the name and address of the videotape operator and the operator’s employer. (The videotape operator and the officer before whom the deposition is to be taken may be the same person.)

If the movant proposes to take the deposition of the expert witness on written questions, then the movant shall annex to the motion a copy of the questions to be propounded. The movant shall also show that prior notice of the motion has been given to the expert witness whose deposition is sought and to each other party, or counsel for each other party, and shall state the position of each of these persons with respect to the motion, in accordance with Rule 50 (a).

(3) Disposition of Motion: Any objection or other response to the motion for order to depose an expert witness under paragraph (a)(2) of this Rule shall be filed with the Court (along with a certificate of service) within 15 days after service of the motion. A hearing on the motion will be held only if directed by the Court. If the Court approves the taking of a deposition, then it will issue an order which will include in its terms the name of the person to be examined, the time and place of the deposition, and the officer before whom it is to be taken. If the deposition is to be videotaped, then the Court’s order will so state.

(e) Use of Deposition for Other Than Discovery Purposes:

(1) Use as Expert Witness Report: Upon written motion by the proponent of the expert witness and in appropriate cases, the Court may order that the deposition transcript serve as the expert witness report required by Rule 143 (f)(1). Unless the Court shall determine otherwise for good cause shown, the taking of a deposition of an expert witness will not serve to extend the date under Rule 143 (f)(1) by which a party is required to furnish to each other party and to submit to the Court a copy of all expert witness reports prepared pursuant to that Rule.

(2) Other Use: Any other use of a deposition of an expert witness shall be governed by the provisions of Rule 81 (i).

(f) Action by the Court Sua Sponte: In the exercise of its discretion the Court may on its own motion order the taking of a deposition of an expert witness and may in its order allocate the cost therefor as it deems appropriate.

(g) Expenses:

(1) In General: By stipulation among the parties and the expert witness to be deposed, or on order of the Court, provision may be made for any costs, expenses, fees, or charges relating to the deposition. If there is not such a stipulation or order, then the costs, expenses, fees, and charges relating to the deposition shall be borne by the parties as set forth in subparagraph (2).

(2) Allocation of Costs, Etc.: The party taking the deposition shall pay the following costs, expenses, fees, and charges:

(A) a reasonable fee for the expert witness, with regard to the usual and customary charge of the witness, for the time spent in preparing for and attending the deposition;

(B) reasonable charges of the expert witness for models, samples, or other like matters that may be required in the deposition of the witness;

(D) any charges of the officer presiding at or recording the deposition (other than for copies of the deposition transcript);

(E) any expenses involved in providing a place for the deposition; and

(F) the cost for the original of the deposition transcript as well as for any copies thereof that the party taking the deposition might order.

The other parties and the expert witness shall pay the cost for any copies of the deposition transcript that they might order.

(3) Failure To Attend: If the party authorized to take the deposition of the expert witness fails to attend or to proceed therewith, then the Court may order that party to pay the witness such fees, charges, and expenses that the witness would otherwise be entitled to under subparagraph (2) and to pay any other party such expenses, including attorney’s fees, that the Court deems reasonable under the circumstances.

(h) Other Applicable Rules: The deposition of an expert witness under this Rule shall be governed by the provisions of the following Rules with respect to the matters to which they apply: Rule 74 (d) (transcript) and 74(e) (depositions upon written questions); Rule 81 (c) (designation of person to testify), 81(e) (person before whom deposition taken), 81(f) (taking of deposition), 81(h) (execution, form, and return of deposition), and 81(j) (videotape depositions); and Rule 85 (objections, errors, and irregularities). For Rules concerned with the timing and frequency of depositions, supplementation of answers, protective orders, effect of evasive or incomplete answers or responses, and sanctions and enforcement action, see Title X.

U.S. Code

Rule 76. Deposition of Expert Witnesses