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Subsection (f)(1) is derived in part from FRCP the 1980
version of Fed. R. Civ. P. 26 (b)(4) and former Rule 400 f and is
in part new.
Subsection (f)(2) is derived from FRCP the 1980 version of
Fed. R. Civ. P. 26 (b)(4) and former Rule U12 b.
Subsection (f)(3) is derived in part from FRCP the 1980
version of Fed. R. Civ. P. 26 (b)(4) and is in part new.
REPORTER'S NOTE
The Rules Committee recommends the addition of a new section
(b) to Rule 2-402, allowing the court by order in a particular
case to alter the limits provided for in the Discovery Rules.
This provision is derived from Fed. R. Civ. P. 26 (b)(2).
Rule 2-402 (f) is proposed to be modified and expanded. The
language “acquired or developed in anticipation of litigation or
for trial” has been deleted from subsection (f)(1)(A) to
eliminate, as to the provisions of that subsection, the
distinction between an expert who was specifically acquired to
testify for the trial and one who was otherwise involved in the
case and is expected to testify. This solves the problem in the
case of Dorsey v. Nold, 362 Md. 241 (2001), in which the court
made that distinction in terms of the medical examiner in a case
who did not develop his opinion as to the cause of death in
anticipation of litigation or for trial and thus did not have to
be disclosed to the other side as a witness. Subsection
(f)(1)(A) clarifies that further discovery (beyond
interrogatories) will consist of the deposition of the expert.
See Fed. R. Civ. P. 26 (b)(4)(A), allowing a party to “depose any
person who has been identified as an expert whose opinions may be
presented at trial.”
The Committee proposes the addition of a Committee note
following subsection (f)(1)(A) to make clear that the subsection
requires a party to disclose each person, other than the party
himself or herself, who may give an expert opinion at trial,
regardless of whether that person was retained in anticipation of
litigation or for trial. This concept is borrowed from Rule
104.10 of the Rules of the U.S. District Court for the District
of Maryland, which uses the term “hybrid fact/expert witness.”
A new subsection (f)(1)(B) sets forth additional provisions
for disclosures with respect to persons expected to be called as
expert witnesses at trial whose findings and opinions were
acquired or obtained in anticipation of litigation or for trial.
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