The Rhode Island Supreme Court has significantly limited the scope of expert discovery in Superior Court. Cashman Equipment Corp, Inc. v. Cardi Corp., Inc., No. 2014-284-M.P., slip op. (R.I. June 3, 2016). This case was a construction dispute in which the plaintiff moved to compel production of all materials and documents "developed or considered" by defendant's expert in formulating his opinions. The Superior Court denied the motion and plaintiff filed a petition for writ of certiorari with the Supreme Court.
The Court said that under Rhode Island's current version of Rule 26, discovery of proposed expert testimony is limited, essentially, to the opinions the expert expects to provide at trial and factual basis of those opinions through the response to an interrogatory and also a deposition. Specifically, Rule 26(b)(4)(A) says:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party.
The Court rejected an argument that the opponent was entitled to discover the written materials either that the expert had reviewed or that he had relied upon in forming his opinions. It said the Rule clearly did not provide for the discovery of those materials, however advantageous it may be to do so. The Court noted that a state statute permits the Superior Court to submit proposed rule changes to it for approval. It stated that any change to the Rule must come through this method, not through an opinion.
The decision clearly provides a much more limited scope of expert discovery than is available in federal court. Accordingly, it may make deposition and cross-examination of experts more difficult as the opposing party may be in the dark as to some of the grounds of the expert's opinions. However, this limitation may also reduce the cost of expert discovery and of litigation, generally. This could be a significant factor to consider whether parties are deciding whether to file a case in Rhode Island state or federal court or whether to remove a state court case to federal court.
Cashman Equipment Corp, Inc. v. Cardi Corp., Inc., No. 2014-284-M.P., slip op. (R.I. June 3, 2016). The opinion is available on-line at https://www.courts.ri.gov/Courts/SupremeCourt/SupremeOpinions/14-284.pdf
For information about our business and commercial litigation practice, please see: /Practice-Areas/Business-Commercial-Litigation.shtml