Connecticut’s expert witness disclosure and production rules are unnecessarily cumbersome and outdated, at least with respect to retained testifying experts. We urge the Rules Committee of the Superior Court to consider and adopt the practices outlined in Fed. R. Civ. P. 26 for retained expert witnesses, requiring reports but limiting discovery to facts or data relied on and precluding most discovery of communications between counsel and expert witnesses.

Connecticut’s expert disclosure rules were adopted long before effective electronic communications. Unlike their federal counterpart, they require disclosure of “all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case.” This is a so-called “bright-line” rule that requires disclosure of everything in the expert’s file. It includes the most banal emails for scheduling, drafts of reports or memoranda, but also emails from lawyers asking questions about theories or seeking advice from the expert about discovery from fact or other expert witnesses. This risks disclosure of what would otherwise be attorney work-product – counsels’ questions or comments could well disclose their mental impressions or case strategies. And it also promotes a silly and inefficient but necessary practice of counsel only speaking with experts on phone or video calls, without an electronic record of what was discussed. There may be multiple emails between an expert and an attorney disclosed in discovery that say nothing more than “call me.”