In New York, a party’s obligation to disclose experts is governed by New York Civil Practice Law and Rules §3101(d). This statute was drafted to encourage the exchange of information, foster settlement, and deter unsupportable claims. In its current iteration, however, CPLR §3101(d) does none of that. Unlike its federal counterpart, New York’s expert disclosure rule is marked by inefficiency, ambiguity, and inconsistency. Section 3101(d) has proven inadequate for litigants, particularly for those who must rely upon expert evidence to prosecute or defend complex matters. These deficiencies have prompted the New York State Bar Association to propose a set of voluntary rules to bolster the current expert disclosure rules for cases before the Commercial Division. This measure has been widely hailed as a significant step toward modernizing procedure for complex business disputes. The concern remains, however, that a large portion of litigants outside of the Commercial Division must still contend with insufficient expert disclosure and a legal morass created by unpredictable rulings from each of the four appellate departments.
Section 3101(d) has two notable features. The first is a lack of guidance with respect to the timing of the disclosure. Under a plain reading of the statute, the parties can seemingly disclose their intended experts at any time during discovery, up to a reasonable time before trial. In some instances, this has been interpreted as allowing expert disclosure even after the start of the trial. The second feature is the minimal amount of disclosure required by the rule. In practical effect, §3101(d) offers the opposing party little to no information about the disclosed expert’s opinion and future testimony. Combined, these two features can have a dramatic impact on a case by impeding early case assessment, the assembling of evidence to rebut expert testimony, and the preparation of trial.
Section 3101(d): Timing
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