Rule 195a: Discovery Regarding Testifying Experts in Suits Governed by the Family Code

195a.1 Permissible Discovery Methods.

A party may request another party to designate and disclose information concerning testifying expert witnesses only through:

(a) a disclosure request served under Rule 194a.1; or

(b) a deposition or report permitted by this rule.

195a.2 Deadline for Response.

Unless otherwise ordered by the court, a responding party must provide the information requested under Rule 194a.2(f) by the later of the following dates:

• (a) 30 days after the date the request is served; or
• (b) either, as applicable:
• • (1) with respect to an expert testifying for a party seeking affirmative relief, 90 days before the end of the discovery period; or
• • (2) with respect to an expert not described by paragraph (b)(1), 60 days before the end of the discovery period.

195a.3 Deposition Availability.

(a) A party seeking affirmative relief must make an expert retained by, employed by, or otherwise under the control of the party available for a deposition in accordance with this rule.

(b) If a party seeking affirmative relief does not provide a report of the party’s expert’s factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party must make the expert available for a deposition reasonably promptly after the designation. If the deposition cannot be reasonably concluded more than 15 days before the deadline for designating other experts due to the actions of the party who designated the expert, the court must extend the deadline for other experts testifying on the same subject.

(c) If a party seeking affirmative relief provides a report of the party’s expert’s factual observations, tests, supporting data, calculations, photographs, and opinions when the party designates the expert, the party is not required to make the expert available for a deposition until reasonably promptly after all other experts have been designated.

(d) A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise under the control of the party available for a deposition reasonably promptly after the party designates the expert and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.

195a.4 Content of Oral Depositions and Court-Ordered Reports.

In addition to a disclosure request served under Rule 194a.1, a party may obtain discovery by oral deposition and a report prepared in accordance with Rule 195a.5 of:

(a) the subject matter on which a testifying expert is expected to testify;

(b) the expert’s mental impressions and opinions;

(c) the facts known to the expert, regardless of when the factual information is acquired, that relate to or form the basis of the expert’s mental impressions and opinions; and

(d) other discoverable items, including documents not produced in response to a disclosure request.

195a.5 Court-Ordered Reports.

If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert are not recorded and reduced to tangible form, the court may order that information be reduced to tangible form and produced in addition to the deposition.

195a.6 Amendment and Supplementation of Discovery.

A party’s duty to amend and supplement written discovery regarding a testifying expert is governed by Rule 193.5. If a party retains, employs, or otherwise controls an expert witness, the party must amend or supplement the expert’s deposition testimony or written report only with regard to the expert’s mental impressions or opinions and the basis for those impressions or opinions.

195a.7 Cost of Expert Witnesses.

When a party takes the oral deposition of an expert witness retained by an opposing party, the party retaining the expert must pay all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition.

195a.8 Expert Communications Protected.

Communications between a party’s attorney and a testifying expert witness in an action subject to this chapter are protected from discovery regardless of the form of the communications, except to the extent that the communications:

(a) relate to compensation for the expert’s study or testimony;

(b) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions the expert will express; or

(c) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions the expert will express.

195a.9 Draft Expert Reports and Disclosures Protected.

A draft expert report or draft disclosure required under this rule is protected from discovery regardless of the form in which the draft is recorded.