Further, these types of disputes may
often exist simultaneously in a single
bankruptcy case or, if not simultaneous,
may occur one after the other without
much time in between. These realities
of bankruptcy practice necessitate
cooperation of counsel, realistic
discovery requests and earnest attempts
to compromise. Notwithstanding these
unique aspects of bankruptcy litigation,
Bankruptcy Rules 7026 through 7037
make Civil Rule 26 applicable in
adversary proceedings.
disclose the identity of any witness who
will provide expert testimony. Absent
a stipulation or court order to the
contrary, these disclosures must occur
90 days before trial. Parties to adversary
proceedings should consider whether to
adjust the default disclosure schedule
and obtain a stipulation or order from
the court, accordingly. Another feature of
the rule is that it distinguishes between
witnesses who must provide a full
expert report and witnesses for whom a
party must merely disclose the subject
matter of the testimony and a summary
of the facts and opinions that will be
the subject of the testimony. The rule
provides that a full report is required
to provide expert testimony, or witnesses
who are employed by the party and
whose duties as an employee regularly
involve giving expert testimony. Expert
testimony from other witnesses is subject
only to the abbreviated disclosures
required by this rule.
Federal Rule of Civil Procedure
26(b) (4) governs the disclosure of, and
discovery related to, expert witness
testimony in adversary proceedings.
This rule sets forth certain rules and
procedures regarding discovery related
to expert witness testimony. First, the
rule provides that a party may depose
any person identified as testifying expert
and if the witness is required to supply
a report, the deposition must occur
only after that report is issued. Second,
the rule protects against disclosure of
(1) drafts of any expert report and (2)
most communications between a party's
attorney and any witness required to
provide a report.
the Privilege in Response to
Discovery Requests
(3) protects documents and tangible
things that are prepared in anticipation
of litigation or for trial by or for another
party or its representative (including
surety, indemnitor, insurer or agent).
Federal Rules of Civil Procedure 26(b)
(5) requires the submission of a privilege
log where a person served with a
document request or subpoena objects to
the production of requested documents
on the ground of privilege. However, a
document-by-document privilege log
is not always necessary when a party
has, in good faith, asserted other non-
privilege objections to the discoverability
of a whole range of materials. Rule 26(b)
(5) does not expressly state a deadline
for submitting the privilege log. A party
asserting a privilege or attorney work
product must describe in detail the
documents or information sought to be
protected and provide precise reasons
for the objection to discovery.
(2) and 26(b)(3)(4)(5) play a role in
adversary proceedings in regards to
Privilege and Expert Discovery. As
such, litigators must take this into
consideration when they step into the
bankruptcy forum.