Is it best to depose an opposing expert early in the expert discovery period, locking in their opinions so that your rebuttal expert can offer a focused, specific response? Or is it wiser to wait until later in the expert discovery period, giving the opposition a chance to review your rebuttal, and forcing them to preview any counterarguments at their deposition? It’s a strategic question the answer to which will vary from attorney to attorney and case to case.

Magistrate Judge Noel’s recent ruling in Wilson, et. al. v. Corning, Inc. makes clear, however, that he will not entertain attempts to have it both ways. In the case, Wilson’s damages expert offered her report in mid-November and Coring quickly noticed her deposition to occur before Corning’s rebuttal report was due in mid-December. Wilson, in turn, moved the Court for a protective order, arguing that the deposition should be postponed until after the rebuttal report had been served.

Magistrate Judge Noel delayed the rebuttal report deadline until the issue could be resolved, and then denied the motion for a protective order on December 28. The judge based his decision on a straight-forward application of the Federal Rules of Civil Procedure and the case’s scheduling order—finding that neither required an affirmative expert’s deposition to be phased after the submission of rebuttal reports. But, Magistrate Judge Noel went out of his way to further explain that Corning “may depose [the expert] once,” and that “to the extent that [the expert’s] opinions at trial are refined in light of the opinions expressed in Corning’s rebuttal report … the Court is unlikely to find them to be new opinions precluded by Rule 26.” 

Thus, parties should be aware that they will not get a second chance to depose an opposing expert after serving a rebuttal report, and that by deposing the expert before giving a rebuttal may give the opposing expert additional leeway to alter or refine her opinions at trial. Add it to you strategic calculus when deciding how to sequence expert discovery in your next case. Read the full opinion here