Tuesday, January 5, 2016

Appraiser Expert Witness Issue: Discovery of Draft Expert Witness Reports (Draft Appraisals) in State Court - a Chart

Appraiser Michael Brunson, SRA, MNAA, and I recently wrote an article for the Appraisal Institute's 4th Quarter 2015 edition of Valuation entitled “Getting Ready for Expert Witness Work: 10 Practice Pointers.”   One of the pointers is that while the Federal Rules of Civil Procedure (Rule 26) now generally protect a retained expert witness's draft reports (e.g., draft appraisals) from discovery by the opposing party, appraisers need to understand that if a litigation is pending in state court and thus subject to the state's rules of civil procedure, the protection regarding drafts may be different or non-existent.  We suggested that expert witness appraisers should have a specific discussion with the attorney retaining them about the preparation and retention of draft appraisal reports and about the potential for being required to produce them as part of the discovery process. 

The following excerpt from the article discusses the importance of understanding the potential “discoverability” of a draft report:

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