Disclosing Trial Experts in NC

All actions filed on or after October 1, 2015 in North Carolina now require automatic disclosure of expert witnesses to be used at trial. This is a departure from the old rule that required no disclosure absent specific discovery requests, such as interrogatories. The purpose of the new rule is to promote transparency and fairness. The update to NC Rules on expert witnesses moves NC more towards the Federal Rule 26(b)(4).

Although interrogatories may no longer be required to acquire information on opposing expert witnesses they should still be utilized to ensure adequate notice. The new rule applies to experts to be used at trial under NC Rule 702, Rule 703, or Rule 705 of the North Carolina Rule of Civil Procedure. A written report is not required like the analogous Federal Rule, which is another reason to still utilize interrogatories and/or a Request for Production of Documents. If a report is agreed to be exchanged by the parties it shall disclose the following:

1. A complete statement of all opinions the witness will express and the basis and reasons for them.
2. The facts or data considered by the witness in forming them.
3. Any exhibits that will be used to summarize or support them.
4. The witness' qualifications, including a list of all publications authored in the previous 10 years.
5. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
6. A statement of the compensation.

In a welcome change, the new North Carolina Rule 26 allows for the deposition of an expert witness to be used at trial without a Court Order. The new rule also provides that the party seeking to depose an expert must pay a “reasonable fee” for their time absent some manifest injustice. Pursuant to the new rule the disclosure of experts to be used at trial must be done at least 90 days before any trial date. Additional provisions of the amended rule protect attorney communications with experts and drafts of disclosures. This same prohibition on discovery also applies to non-testifying experts.
 
Although the new NC Rule 26(b)(4) may not have a significant impact among high dollar cases with lawyers on both sides this is a significant change for pro-se litigants in child custody or property division cases facing testimony for a child psychologist or real estate appraiser. This rule could also dramatically impact any case where a doctor testifies on behalf of a child. Another question will be if Judges enforce this new rule absent any objection from an unrepresented party who is not aware of the new rule. The new Rule 26 could serve to protect pro-se litigants from being ambushed with unexpected testimony from an alleged "expert" without any forewarning. Either way parties need to plan in advance to properly hire, plan, and disclose the use of experts in compliance with the new requirements on expert witness disclosure.