Rhode Island Makes It Easier to Get an Expert's Documents

Paralegals often spend a lot of time tracking down materials cited in expert reports. In addition to produced documents and deposition testimony taken in the case the report is prepared for, experts often also rely on other documentation which is difficult to locate if it is indeed publicly available. Four years ago, the Supreme Court of Rhode Island issued a decision, Cashman Equip. Corp. v. Cardi Corp., 139 A.3d 379 (R.I. 2016), which found that a lower court correctly denied a motion to compel all documents considered by an expert in his written opinion. The Court concluded that, "Our review of the language of Rule 26(b)(4)(A) leads us to the ineluctable conclusion that that rule is indeed clear and unambiguous . . . It does not provide for the disclosure of documents. " Id. at *382-83. Rule 26 had only specified that interrogatories can be submitted regarding expert witnesses, and that expert witness can be deposed. The Court noted its strong policy in favor of safeguarding the work product of expert witnesses.

Thursday, an order was issued amending Rule 26(b)(4)(A) to include the following, "A party may, through a request for production pursuant to Rule 34, a request attached to a notice of deposition pursuant to Rule 30(b)(5), or subpoena duces tecum pursuant to Rule 45, require any other party to produce all documents and materials relied upon by a person whom the other party expects to call as an expert witness at trial in formulating that expert's opinion(s). If documents and materials are requested, the procedures of Rules 34 and 45, respectively, shall apply to the request." In re Amendments to the Superior Court Rules of Civil Procedure, 2020 R.I. LEXIS 74, at *4-5 (Dec. 10, 2020).

In Rhode Island the Rules of Civil Procedure are amended when a majority of the members of the Rhode Island Superior Court make a recommendation to the Rhode Island Supreme Court that the Supreme Court approves.