Expert Discovery Plan (FRCP 26(a)(2))

EXPERT DISCOVERY PLAN

Case Caption

Case Number: [________________________________]

Court: [________________________________]

Judge/Magistrate: [________________________________]

I. PURPOSE OF PLAN

This Expert Discovery Plan establishes a coordinated framework for disclosure, deposition, and trial presentation of expert witnesses consistent with Federal Rules of Civil Procedure 26(a)(2) and local court rules. This Plan addresses:

• Timing of expert disclosures and rebuttal disclosures
• Classification of experts (retained, non-retained, treating physicians, employees)
• Content and format of expert reports
• Expert deposition scheduling and procedures
• Work product protections under Rule 26(b)(4)
• Daubert motion logistics
• Trial witness sequencing and presentation order

II. SCHEDULING

A. Rule 26(f) Scheduling Conference

Conference Date: [__/__/____]

Parties Represented:

• Plaintiff's Counsel: [________________________________]
• Defendant's Counsel: [________________________________]

The parties conferred pursuant to Federal Rule of Civil Procedure 26(f) and discussed expert discovery requirements, anticipated number of experts, and scheduling constraints.

B. Initial Expert Disclosure Deadline

Plaintiff's Expert Disclosure Due: [__/__/____]

Defendant's Expert Disclosure Due: [__/__/____]

Expert Categories Included in Initial Disclosure:

• ☐ Retained experts (Rule 26(a)(2)(B) — full written report required)
• ☐ Non-retained experts (Rule 26(a)(2)(C) — summary of opinions required)
• ☐ Treating physicians who will testify
• ☐ Employee experts

C. Expert Deposition Windows

Plaintiff's Experts Available for Deposition:

From: [__/__/____] To: [__/__/____]

Defendant's Experts Available for Deposition:

From: [__/__/____] To: [__/__/____]

Deposition Procedures:

• ☐ All expert depositions shall be noticed at least 14 days in advance
• ☐ Expert shall bring report, curriculum vitae, and documents considered
• ☐ Default deposition duration: 7 hours per expert (extensible by stipulation)
• ☐ Videography: [☐ Permitted / ☐ Required / ☐ By Agreement]
• ☐ Transcript to be provided to expert for review and correction

D. Rebuttal Expert Deadline

Plaintiff's Rebuttal Experts Due: [__/__/____]

Defendant's Rebuttal Experts Due: [__/__/____]

Rebuttal Disclosure Requirements:

• Rebuttal experts shall respond to opinions in initial disclosures only
• Rebuttal reports must comply with Rule 26(a)(2)(B) requirements (full reports for retained experts)
• ☐ Rebuttal experts shall be available for deposition by: [__/__/____]
• ☐ Cross-examination of rebuttal experts at deposition permitted on all matters (not rebuttal opinions only)

E. Supplemental Disclosures (Rule 26(e))

Supplementation Obligations:

Parties shall supplement expert disclosures to reflect information subsequently learned or disclosed, including:

• Changes to opinions or bases for opinions
• New documents or data considered by expert
• Additional publications by expert
• Changes in expert's compensation agreement
• Correction of curriculum vitae or qualifications

Supplementation Timeline: All supplemental expert disclosures shall be due:

• ☐ At least 21 days before expert's scheduled trial testimony, or
• ☐ At least 14 days before expert's scheduled deposition, or
• ☐ By stipulation/court order: [________________________________]

Supplemental Deposition Rights:

If substantial supplemental information is disclosed, opposing party may conduct a supplemental deposition of the expert at least 14 days before trial testimony.

F. Daubert/Frye Motion Deadlines

Motion Deadline: [__/__/____]

Response/Opposition Due: [__/__/____]

Reply Brief Due: [__/__/____]

Hearing Date (if scheduled): [__/__/____]

Scope of Daubert Challenges:

• ☐ Challenges to expert qualifications
• ☐ Challenges to reliability of methodology
• ☐ Challenges to relevance of opinions to disputed issues
• ☐ Challenges based on Rule 26(a)(2) deficiencies

Notice Requirements:

Parties seeking to challenge expert admissibility shall identify the specific expert and basis for challenge no later than [__/__/____].

G. Trial Date and Witness Order

Trial Date: [__/__/____]

Pretrial Conference: [__/__/____]

Final Witness List Due: [__/__/____]

Proposed Witness Order (Expert Testimony Sequence):

1. [________________________________] — [Expert Discipline]
2. [________________________________] — [Expert Discipline]
3. [________________________________] — [Expert Discipline]
4. [________________________________] — [Expert Discipline]

III. CATEGORIZATION OF EXPERTS

A. Retained Experts (Rule 26(a)(2)(B))

Definition: Experts retained or specially employed to provide expert testimony or who develop their opinions at the direction of counsel in anticipation of litigation or trial.

Examples:

• Forensic engineers
• Industry consultants
• Medical specialists retained by counsel
• Business valuation experts
• Economic damages experts
• Technical specialists

Disclosure Requirements:

• ☐ Written report signed by expert (or prepared under expert's direction and reviewed/approved)
• ☐ Complete statement of all opinions
• ☐ Basis and reasons for opinions
• ☐ Facts and data considered
• ☐ Exhibits summarizing/supporting opinions
• ☐ Curriculum vitae (qualifications, publications past 10 years)
• ☐ List of prior testimony (past 4 years)
• ☐ Statement of expert's compensation
• ☐ Confirmation that expert has reviewed applicable rules and understands obligations

Retained Experts Disclosed by Plaintiff:

Retained Experts Disclosed by Defendant:

B. Non-Retained Experts (Rule 26(a)(2)(C))

Definition: Experts whose opinions are based on their knowledge, skill, experience, training, or education acquired outside the litigation context, or who did not develop their opinions at counsel's direction.

Examples:

• Treating physicians
• Fact witnesses with expert knowledge
• Employees of a party (testifying about business practices)
• Prior investigators or consultants not retained for litigation

Disclosure Requirements:

• ☐ Subject matter on which expert will testify
• ☐ Summary of facts and opinions to which expert will testify
• ☐ If expert authored a written report: full report complying with Rule 26(a)(2)(B)

Non-Retained Experts Disclosed by Plaintiff:

Non-Retained Experts Disclosed by Defendant:

C. Treating Physicians/Healthcare Providers

Status: ☐ Retained / ☐ Non-Retained

If a treating physician or healthcare provider will testify regarding treatment rendered to a party, the party shall disclose:

• ☐ Full written report (if opinions are offered), or
• ☐ Summary disclosure under Rule 26(a)(2)(C)

Treating Physicians/Providers to Testify:

D. Employee Experts

Definition: Current or former employees of a party who possess expert knowledge and will provide expert testimony.

Status: ☐ Treated as Retained / ☐ Treated as Non-Retained

Disclosure Requirements:

• If developing opinions at counsel's direction: treated as retained expert with full Rule 26(a)(2)(B) report
• If testifying to knowledge acquired in ordinary course of employment: may be disclosed under Rule 26(a)(2)(C) if written report not required by court

Employee Experts:

IV. RETAINED EXPERT DISCLOSURE REQUIREMENTS

A. Written Expert Report (Rule 26(a)(2)(B))

All retained expert reports shall:

1. Be Signed or Certified by Expert
   - ☐ Report signed by expert, or
   - ☐ Certification that expert has reviewed and approved report prepared by counsel or party

2. Contain Complete Statement of Opinions
   - Identify each opinion the expert will express
   - Distinguish between opinions that expert will rely upon at trial versus background opinions

3. State Basis and Reasons for Opinions
   - Explain the reasoning underlying each opinion
   - Identify scientific, technical, or specialized principles applied
   - Reference applicable standards, guidelines, or industry practices

4. Identify Facts and Data Considered
   - List documents reviewed
   - Identify individuals consulted or interviewed
   - Describe tests, analyses, or investigations conducted
   - Specify assumptions underlying the analysis

5. Include Exhibits and Summaries
   - Photographs, diagrams, charts, or technical drawings
   - Summary tables of key data
   - Comparative analyses
   - Calculations or computational summaries

6. Provide Curriculum Vitae (CV)
   - Full name and title
   - Current position and employer
   - Education (degrees, institutions, dates)
   - Professional licenses and certifications
   - Publications authored in the past 10 years (per Rule 26(a)(2)(B)(vi))
   - Prior expert testimony (see below)
   - Professional affiliations and teaching experience

7. List Prior Expert Testimony
   - In the past 4 years: list all cases in which expert testified as expert at trial or by deposition
   - Include case name, court, date, subject matter
   - Designation: ☐ Trial / ☐ Deposition / ☐ Both
   - If more than one case, provide table or attach separate sheet

8. State Compensation Agreement
   - Expert's hourly rate or fee arrangement
   - Whether fee is contingent on opinions or outcome
   - Expected compensation for report and trial testimony
   - Any agreements regarding payment for deposition or trial time

9. Acknowledge Understanding of Obligations
   - Statement that expert understands obligations under Rule 26(a)(2) and applicable rules of evidence
   - Confirmation that expert will supplement disclosures if information changes
   - Acknowledgment that expert understands may be subject to Daubert/Frye challenge

B. Format and Service

Report Format:

• ☐ Typed, single-spaced, with 1-inch margins
• ☐ Page-numbered
• ☐ Section headings and subheadings
• ☐ Font size: [________________] (not smaller than 10-point)

Service and Filing:

• ☐ Reports served on all counsel at least [______] business days before deadline
• ☐ Courtesy copies provided to chambers if required by local rule
• ☐ Electronic service by email or ECF: [________________________________]

V. RULE 26(B)(4) PROTECTIONS

A. Protection of Draft Reports

Scope of Protection:

Pursuant to Federal Rule of Civil Procedure 26(b)(4)(B), drafts of any expert report required to be disclosed under Rule 26(a)(2) are protected as attorney work product and shall not be subject to discovery, regardless of the form in which the draft is recorded.

Examples of Protected Drafts:

• ☐ Preliminary written reports
• ☐ Attorney edits or revisions
• ☐ Emails or communications regarding report content
• ☐ Notes or outlines prepared in connection with report

Limitation:

The final expert report (the version actually disclosed) is not protected. Only earlier drafts and interim communications are protected.

B. Protection of Attorney-Expert Communications

Scope of Protection:

Communications between party's attorney and any retained expert required to provide a report under Rule 26(a)(2)(B) are protected from discovery, regardless of the form of communication, EXCEPT to the extent the communications:

1. Relate to compensation for expert's study or testimony
2. Identify facts or data provided by counsel that expert considered
3. Identify assumptions provided by counsel that expert relied upon

Examples of Protected Communications:

• ☐ Attorney strategy discussions with expert
• ☐ Advice regarding expert's opinion formation
• ☐ Drafting guidance or suggestions
• ☐ Legal analysis provided to expert

Examples of Discoverable Communications:

• ☐ Agreements regarding expert's fees or hourly rate
• ☐ List of documents or data sent to expert for review
• ☐ Email forwarding facts or assumptions counsel believes expert should consider
• ☐ Instructions specifying which documents expert should review

C. Exceptions to Protection

The following remain discoverable despite Rule 26(b)(4) protection:

1. Compensation:
   - Expert's hourly rate or fee
   - Payment terms or billing arrangements
   - Whether fee is contingent on outcome (if inquired)

2. Facts or Data Provided by Counsel:
   - Any factual information or documentation counsel provided to expert
   - This exception focuses on factual content, not legal analysis

3. Assumptions Provided by Counsel:
   - Statements of assumed facts or conditions that expert relied upon
   - Example: "Assume that X caused Y"

Not Protected — Expert's Own Sources:

Information the expert developed independently or obtained from sources other than counsel (medical literature, independent investigation, interviews with third parties) is not protected, even if discussed with counsel.

D. Procedure for Asserting Protection

When Producing Documents:

• ☐ Designate protected drafts with label "[WORK PRODUCT — DRAFT REPORT]"
• ☐ Do not produce drafts
• ☐ Include on privilege log with entry: "Draft expert report dated [__/__/____] — Rule 26(b)(4)(B) work product protection"

If Opposing Party Requests Protected Materials:

• ☐ Object citing Rule 26(b)(4)(B) or Rule 26(b)(4)(C)
• ☐ Include statement identifying type of communication/draft and basis for protection
• ☐ Produce privilege log entry if requested by court

VI. EXPERT DEPOSITION PROTOCOL

A. Notice and Scheduling

Deposition Notice Requirements:

• ☐ At least 14 days' written notice (or as agreed)
• ☐ Specify date, time, location of deposition
• ☐ Indicate whether deposition will be recorded by audio, video, or both
• ☐ Identify court reporter or transcript service
• ☐ Request for any documents expert should bring

Deposition Location:

• ☐ Federal courthouse in [________________________________]
• ☐ Counsel's office: [________________________________]
• ☐ Expert's office: [________________________________]
• ☐ Virtual deposition (videoconference): [________________________________]

B. Expert's Obligations at Deposition

Expert Shall Bring:

• ☐ Signed expert report
• ☐ Curriculum vitae
• ☐ All documents considered (as listed in report)
• ☐ Exhibits to be used in testimony
• ☐ Billing records and fee documentation
• ☐ Any notes, drafts, or work papers
• ☐ Publications referenced in report

Expert Responsibilities:

• ☐ Arrive at least 15 minutes before scheduled time
• ☐ Bring original documents (copies acceptable if originals cannot be located)
• ☐ Verify accuracy of transcript and request corrections
• ☐ Respond fully to questions posed

C. Deposition Procedure and Duration

Default Duration:

• Standard expert deposition: 7 hours per expert
• Extensible by stipulation of counsel

Parties Entitled to Depose:

• ☐ Party who disclosed the expert
• ☐ Opposing party(ies)
• ☐ Non-appearing parties by agreement

Order of Questioning:

• Counsel for disclosing party may begin if choosing to do so
• Opposing counsel then deposing
• Redirect examination by disclosing party's counsel
• Supplemental questions as permitted by deposition rules

Deposing Counsel Shall:

• ☐ Identify areas of examination in advance if requested
• ☐ Provide copies of key documents to expert before deposition (courtesy)
• ☐ Mark and reference exhibits clearly
• ☐ Ask clear, focused questions
• ☐ Allow expert to review documents before being questioned about them

D. Exhibits at Deposition

Marking Exhibits:

• ☐ Use sequential exhibit numbers or deponent initials + numbers (e.g., "DEX-1," "DEX-2")
• ☐ Mark originals of new documents as exhibits
• ☐ Reference by exhibit number in deposition transcript
• ☐ Maintain exhibit list on record

Exhibits Already in Case:

• ☐ May reference previously marked exhibits by case exhibit number
• ☐ Need not re-mark if already in record

E. Transcript and Follow-Up

Transcript Procedures:

• ☐ Rough draft transcript provided within [______] days of deposition
• ☐ Expert entitled to review transcript and submit Errata Sheet listing corrections
• ☐ Errata Sheet due within [______] days of receipt of draft
• ☐ Certified transcript finalized after errata received or deadline expires

Post-Deposition:

• ☐ Copies of transcript provided to all counsel within [______] days
• ☐ Deposition exhibits retained by court reporter or [________________________________]

VII. SUPPLEMENTATION OBLIGATIONS (Rule 26(e))

A. Duty to Supplement

Each party has a continuing obligation to supplement expert disclosures if subsequently acquired information materially changes or adds to the expert's disclosed opinions or qualifications.

Supplementation Required For:

• ☐ Changes to expert's opinions or bases
• ☐ New documents or data expert will consider
• ☐ Changes to expert's qualifications or publications
• ☐ Modifications to expert's compensation arrangement
• ☐ Corrections to curriculum vitae
• ☐ Newly discovered prior testimony by expert

B. Timing of Supplementation

Standard Deadline:

Supplemental disclosures shall be made at the earliest of:

1. At least 21 days before expert's scheduled trial testimony, or
2. At least 14 days before expert's scheduled deposition, or
3. As otherwise ordered by the court

Supplementation for Changes Discovered During Deposition:

If significant changes to expert's opinions emerge during deposition (e.g., expert testifies differently than reported), disclosing party shall:

• ☐ Acknowledge the change on the record at deposition, or
• ☐ Serve supplemental report within [______] days of deposition, or
• ☐ As directed by court

C. Form of Supplementation

Supplemental Report Options:

• ☐ Separate supplemental report addressing changes
• ☐ Amended and restated expert report incorporating all information
• ☐ Letter from counsel identifying specific changes with expert's notation
• ☐ Court-ordered supplementation in alternative form

Supplemental report shall:

• ☐ Clearly identify what is new or changed
• ☐ Explain why supplementation was necessary
• ☐ Be signed or certified by expert (same as initial report)
• ☐ Address whether expert opinion remains the same or has changed

D. Right to Supplemental Deposition

If substantial supplemental information is disclosed, opposing party may:

• ☐ Take supplemental deposition of expert at least 14 days before trial
• ☐ Limited to supplemented or new information, unless court permits broader inquiry

VIII. DAUBERT/FRYE MOTION LOGISTICS

A. Deadline and Notice

Motion Challenging Expert Admissibility:

Any party seeking to challenge the admissibility of expert testimony under Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Frye, or other applicable standard shall:

• ☐ File motion by: [__/__/____]
• ☐ Identify specific expert(s) challenged
• ☐ State basis for challenge:
• ☐ Expert lacks qualifications
• ☐ Methodology unreliable
• ☐ Opinion not relevant to issues
• ☐ Rule 26(a)(2) disclosure deficiency
• ☐ Other: [________________________________]

B. Contents of Daubert Motion

Motion shall address:

1. Expert's Qualifications
   - Does expert possess specialized knowledge, skill, experience, training, or education relevant to subject matter?
   - Are qualifications adequate to testify on the disputed opinions?

2. Reliability of Methodology
   - Is methodology based on reliable principles and methods?
   - Has methodology been tested?
   - Is there peer review and publication?
   - Is there known error rate?
   - Are there industry standards or guidelines?
   - Is methodology generally accepted in relevant field?

3. Relevance of Opinion
   - Does expert's opinion logically fit the issues in dispute?
   - Is expert's opinion relevant to contested facts?
   - Is relevance value substantially outweighed by risk of unfair prejudice?

4. Rule 26(a)(2) Compliance
   - Is disclosure adequate under Rule 26(a)(2)(B)?
   - Has supplementation obligation been satisfied?
   - Is there a Rule 26(b)(4) work product issue?

C. Response and Scheduling

Opposing Party's Response Due: [__/__/____]

Reply Brief Due (if Permitted): [__/__/____]

Oral Argument:

• ☐ Hearing scheduled: [__/__/____]
• ☐ Time allotted: [________________]
• ☐ No hearing; decision on papers
• ☐ Pre-motion conference to be held: [__/__/____]

D. Court's Decision and Effect

Possible Outcomes:

• ☐ Daubert motion granted; expert excluded
• ☐ Daubert motion denied; expert admitted
• ☐ Motion granted in part; certain opinions excluded, others admitted
• ☐ Conditional admission pending stipulation or further disclosure

If Expert Excluded:

• ☐ Expert shall not testify at trial
• ☐ Expert's opinions shall not be referenced or relied upon in jury instructions or verdict form
• ☐ If motion denial is appealed, expert's deposition may be stayed by agreement

IX. TRIAL WITNESS LIST AND ORDER

A. Trial Witness Sequencing

Proposed Order of Expert Testimony:

B. Trial Preparation and Testimony

Expert's Trial Responsibilities:

• ☐ Attend all scheduled trial sessions (or as needed for testimony)
• ☐ Coordinate with counsel regarding direct examination outline
• ☐ Prepare visual aids, demonstratives, or trial exhibits
• ☐ Review prior deposition transcript to prepare for cross-examination
• ☐ Bring current curriculum vitae and all report materials to trial
• ☐ Be prepared to explain basis for all disclosed opinions

Counsel's Trial Obligations:

• ☐ Provide expert with detailed outline of direct examination
• ☐ Meet with expert before trial to prepare testimony
• ☐ Coordinate visual aids and demonstratives with expert
• ☐ Ensure expert has access to transcripts and prior testimony
• ☐ Arrange expert's lodging, transportation, meals as needed

C. Verdict Form References

If Expert's Opinion Relevant to Verdict Form:

• ☐ Question(s) in verdict form based on expert's opinions: [________________________________]
• ☐ Proposed jury instructions regarding expert testimony: [________________________________]
• ☐ Cross-references between expert opinions and special verdict form prepared

X. STIPULATIONS

A. Agreed Stipulations (If Any)

Counsel have agreed to the following stipulations regarding expert discovery and trial:

Stipulation 1: [If no stipulations agreed, mark N/A or delete this section]

☐ Qualifications of [________________________________] are stipulated and need not be established through testimony.

Stipulation 2:

☐ The following portions of [Expert Name]'s report are accepted as accurate without testimony: [________________________________]

Stipulation 3:

☐ Expert depositions may be conducted by telephone or videoconference with parties' agreement.

Stipulation 4:

☐ Other: [________________________________]

B. Signature by Counsel

Counsel for all parties agree to the terms of this Expert Discovery Plan and shall comply with all deadlines and procedures outlined herein.

EXPERT TRACKING TABLE

Summary of All Disclosed Experts

SIGNATURES OF COUNSEL

By executing below, counsel acknowledge receipt of this Expert Discovery Plan and agree to comply with all deadlines and procedures outlined herein.

For Plaintiff:

Counsel Name (Print): ______________________________

Signature: ______________________________ Date: [__/__/____]

Address: [________________________________]

Email: [________________________________]

Phone: [________________________________]

For Defendant:

Counsel Name (Print): ______________________________

Signature: ______________________________ Date: [__/__/____]

Address: [________________________________]

Email: [________________________________]

Phone: [________________________________]

For Any Additional Parties:

Counsel Name (Print): ______________________________

Signature: ______________________________ Date: [__/__/____]

Address: [________________________________]

Email: [________________________________]

Phone: [________________________________]

SOURCES AND REFERENCES

• Federal Rules of Civil Procedure, Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Federal Rules of Evidence, Rule 702 — Expert Opinions and Testimony
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
• Advisory Committee Notes to 2010 Amendments to FRCP 26(b)(4)
• Expert Institute — Rule 26 Federal Rules of Civil Procedure: A Disclosure Guide for Expert Witnesses
• Federal Rules of Civil Procedure, Rule 16 — Pretrial Conferences; Scheduling; Management