New York state-court practice regarding expert disclosure is limited in comparison to federal court practice. New York state-court practice requires only that, upon request, a party (a) identify experts who may be called to testify at trial, (b) provide the expert’s qualifications, and (c) provide a reasonably detailed summary of the subject matter, facts, and opinions as to which the expert will testify. (See CPLR 3101(d)(1) and (2).)
Disclosure is thus required only of litigation experts to be called at trial; no disclosure is required of consulting experts. And no further disclosure of testifying experts is permitted absent a court order upon a showing of extraordinary circumstances. (See CPLR 3101(d)(1)(iii).)
A party can obtain additional expert discovery, including expert depositions, from a testifying expert only by court order after showing special circumstances.
To establish special circumstances, a litigant generally must show that its expert does not have the same opportunity for investigation as the opposing expert, such as when the evidence on which the opposing expert based her opinion is lost, destroyed, or otherwise not available. The First Department holds that loss of evidence is a special circumstance per se. (Rosario v. Gen. Motors Corp., 543 N.Y.S.2d 974 (1st Dep't 1989).) In that instance, the court may limit the additional disclosure to the expert's factual observations, and prohibit disclosure of her opinions. (See, for example, Rosario, 543 N.Y.S.2d at 974.)
Courts grant additional expert discovery in limited circumstances. For example, courts have ordered:
By contrast, courts have denied:
CPLR 3101(h) requires that a party amend or supplement his/her/its previous disclosure promptly upon obtaining information that the response was incorrect or incomplete then or is no longer correct or complete now and that the circumstances are such that a failure to amend or supplement the disclosure would be materially misleading.
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