Nebraska Rules Regarding Expert Witness Depositions and Interrogatories
There is no general right to depose expert witnesses in Nebraska, even those that are expected to testify at trial. However, Section 6-326(b)(4)(A)(ii) of the Nebraska Court Rules of Discovery in Civil Cases provides that, upon motion, a court may order discovery beyond the generally allowed means, discussed in the following section, which may include deposition. There is no specific time limit for depositions in Nebraska, but Section 6-330(b)(3) provides that the court may increase or decrease the time for taking a deposition upon a showing of cause. Also, experts generally may not be subject to interrogatories in Nebraska, 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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Nebraska Expert Witness Reports and Disclosures Rules
The extent of required disclosures for experts in Nebraska depends on whether the expert is expected to testify at trial or was retained only for consulting purposes. For the latter category of experts, Section 6-326(b)(4)(B) of the Nebraska Rules provides that discovery may only be had upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. This is a difficult showing to make, and a search of Nebraska case law suggests that parties rarely attempt to make such a claim.
For an expert expected to be called at trial, Section 6-326(b)(4)(A)(i) provides that a party can be required to disclose the identity of such expert, the subject matter on which he or she is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the basis for these opinions upon interrogatory from the opposing party. Again, under Section 6-326(b)(4)(A)(ii), discovery by more intrusive means, such as a document production request, may be had upon motion.
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Nebraska
The Nebraska Court Rules of Discovery in Civil Cases do not address attorney-expert communications or draft expert reports. Issues surrounding such materials most often arise when an attorney communicates materials to an expert that would otherwise be attorney work product, which the Nebraska Rules protect from discovery absent substantial need and undue hardship. In 2010, the Nebraska Supreme Court considered whether such an attorney-expert communication renders these otherwise protected materials discoverable. The case involved a communication by one party’s law firm to its retained expert witness. The Supreme Court affirmed the lower court in holding that the communication was protected from discovery, stating, “whether considered attorney work product or the expert’s opinions, it is clear from the rules above that, at the very least, the [opponent] had to demonstrate a substantial need for the materials.” Podraza v. New Century Physicians of Neb., LLC, 789 N.W.2d 260, 272 (Neb. 2010). The court went on to suggest in dicta that substantial need may be shown when a party is “seeking information necessary to understand the basis for the expert’s opinion.” Id.