Twisting the Purposes of Discovery: Expert Witnesses and the Deposition Dilemma

The system of discovery that the Federal Rules establish theoretically entitles all parties in civil actions, prior to commencement of trial, to disclosure of all relevant nonprivileged information in he possession of any person. Thus, federal discovery rules should not force litigants to choose between failing to depose a party-opponent\u27s expert witness and thereby preparing inadequately for trial, and deposing the expert witness and consequently risking that opposing counsel will use the deposition against him at trial without the benefit of cross-examination. Part H of this Note reviews common law disagreement over the appropriateness of expert witness discovery and the acceptance of the principle under the Federal Rules. Part III discusses the procedural mechanics of discovering an expert witness and demonstrates the potential for use of such a deposition against the discovering party. Part IV reviews the judicial history of the expert witness deposition problem and demonstrates that courts have ignored the policy reasons that favor remedying this procedural problem. Part V discusses the in-equities that the expert witness deposition problem causes. It concludes that courts, by admitting discovery depositions of expert witnesses against the deposing party, not only have controverted the basic purposes of pretrial discovery, but also erroneously have eliminated the process of deposing the witness of a party-opponent as a pretrial discovery technique by effectively recharacterizing it as an extension of formal trial proceedings that presume the deposing party engaged in full pretrial preparation. Part V then explores several possible methods courts and rule makers could em-ploy to solve this problem, including an amendment to rule 26