Colorado Rules Regarding Expert Witness Depositions and Interrogatories
Under Rule 26(b)(4) of the Colorado Rules of Civil Procedure, experts that a party expects to call a trial may be subject to deposition. Rule 30(d)(2) limits depositions to one seven-hour day, although the court may either lengthen or shorten the time allowed if circumstances warrant. Experts generally may not be subject to interrogatories in Colorado, as they are only served on the parties. As discussed in the following section, though, these interrogatories can require disclosures about experts and, accordingly, expert participation in responding to certain interrogatories may be beneficial.
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Colorado Expert Witness Reports and Disclosures Rules
The extent of disclosures required for experts in Colorado depends on whether the expert’s opinions are to be presented at trial. If an expert’s opinions will not be presented, and instead the expert was retained purely for consulting purposes, information regarding the latter group of experts, is not discoverable unless the party seeking discovery can demonstrate exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means. The exceptional circumstances requirement imposes an extremely difficult burden to overcome. See generally Phillips v. District Court of Second Judicial Dist., 573 P.2d 553 (Colo. 1978); Haralampopoulos v. Kelly, 2008 Colo. Dist. LEXIS 83 (Colo. Dist. 2008).
On the other hand, as mentioned above, experts whose opinions are expected to be presented at trial may be deposed as to those opinions. Additionally, experts who were retained or specially employed to provide expert testimony in the case or whose duties as the party’s employee regularly involve giving expert testimony must provide a written report. This report must contain a complete statement of all opinions the witness will express and the grounds for such opinions, the facts and data considered by the expert, an exhibits that the expert will use, the expert’s qualifications, including a list of publications penned in the last ten years, a list of all cases in which the witness has testified as an expert in the last four years, and a statement of the compensation to be paid to the expert.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Colorado
Colorado has codified the work product doctrine, protecting against the disclosure of attorney mental impressions and theories prepared in anticipation of litigation, in Rule 26(b)(3). However, materials that would otherwise be privileged work product are discoverable if considered by an expert in forming the expert’s opinions or preparing to give testimony. In re Gall, 44 P.3d 233, 239 (Colo. 2002) (adopting a “bright-line rule in favor of production of any information which the expert considers.”). Therefore a lawyer’s communication of privileged materials to an expert will render those materials discoverable.