Washington Expert Witness Discovery Rules

What Is the Scope of Expert Discovery in Washington?

In Washington, the scope of expert discovery is defined by the state's civil procedure rules. The discovery of expert information is primarily governed by Wash. Super. Ct. Civ. R. 26(b)(5)(A)(i), which allows a party to obtain through interrogatories the identity of expert witnesses the opposing party intends to call at trial. The rule requires a summary of the expert's expected testimony, including the facts and opinions they will present, rather than a comprehensive written report. This approach deviates from the Federal Rule of Civil Procedure 26(b)(4), as Washington does not mandate automatic expert reports.

Limits on Expert Discovery

Washington places certain limits on the discovery of expert communications and materials. While the state has not formally adopted the federal rule that explicitly protects draft reports, Washington case law generally treats draft expert materials and attorney-expert communications as opinion work product, which are typically not discoverable. This offers a layer of protection over these communications, consistent with the principle of safeguarding mental impressions and legal strategies.

Timing and Procedure for Expert Discovery in Washington

The timing and procedural steps for expert discovery in Washington are dictated by local rules and court schedules, which often outline specific deadlines for the exchange of expert information. Generally, expert discovery occurs after initial disclosures and is scheduled by court order or local case schedules. For instance, in King County, the case schedule will specify dates for primary and rebuttal expert witness disclosures.

Procedural Steps

• Interrogatories: Parties may serve interrogatories to identify expert witnesses and obtain a summary of their testimony.
• Depositions: After exchanging summaries, parties may conduct depositions of opposing experts, subject to limitations by protective orders.
• Supplementation: Parties are required to supplement expert disclosures if there are changes to the expert's opinions or upon the discovery of new facts (Wash. Super. Ct. Civ. R. 26(e)).

What Methods of Expert Discovery Are Permitted in Washington?

Washington permits several methods for expert discovery, which include:

• Interrogatories: Used to obtain names of expert witnesses and a summary of their testimony.
• Depositions: Allowed after the exchange of expert summaries, unless restricted by a court order.
• Document Requests: While not explicitly required, these can be used to obtain documents related to the expert's testimony.

Discovery is generally limited to experts expected to testify at trial. The state does not explicitly distinguish between testifying and consulting experts in its procedural rules, although discovery of consulting experts may be permitted upon showing of exceptional circumstances or substantial need.

Limits on Discovery of Expert Materials and Communications

Washington handles the discovery of expert materials and communications with particular regard to privilege and work-product protections. Draft expert materials and attorney-expert communications are treated as opinion work product and are typically not discoverable. Exceptions exist for materials related to bias, reliance, or facts and data considered by the expert in forming opinions.

Consequences for Noncompliance or Discovery Violations

Noncompliance with expert discovery rules in Washington can lead to significant consequences. Under Wash. Super. Ct. Civ. R. 37, the court may impose sanctions such as:

• Exclusion of Expert Testimony: Failure to identify an expert or provide the substance of their testimony can result in exclusion or limitation of that testimony at trial.
• Continuances: Delays in proceedings to rectify discovery violations.
• Monetary Sanctions: Financial penalties imposed on the non-complying party.

Relevant Rules and Legal Authority in Washington

Washington's expert discovery is governed by several key rules and statutes:

• **Wash. Super. Ct. Civ. R. 26(b)(5)(A)(i)**: Governs the disclosure of expert witnesses and their testimony summaries.
• **Wash. Super. Ct. Civ. R. 26(e)**: Requires supplementation of expert disclosures.
• Wash. Super. Ct. Civ. R. 37: Addresses sanctions for discovery violations.
• RCW 7.70.150: Specific to medical malpractice, requiring 90 days' pretrial notice of expert witnesses.

These rules and statutes form the backbone of Washington's approach to expert discovery, highlighting differences from federal practices and emphasizing local procedural requirements.