Internal Revenue Code:Rule 76. Deposition of Expert Witnesses

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Location in Internal Revenue Code

     TITLE 26 - INTERNAL REVENUE CODE
      TITLE 26 - APPENDIX
       TITLE VII. - DISCOVERY
     

Statute

    Rule 76. Deposition of Expert Witnesses
 
      (a) Availability: (1) Depositions Upon Consent of Parties: The
    deposition of an expert witness upon consent of all the parties to
    a case shall be governed by Rule 74 rather than this Rule, except
    that the provisions of paragraph (e) of this Rule shall apply to
    such a deposition.
      (2) Other Depositions: The taking of a deposition of an expert
    witness without consent of all the parties to a case is an
    extraordinary method of discovery.  Such a deposition may be taken
    only pursuant to an order of the Court.
      (b) Scope of Deposition: The deposition of an expert witness
    under paragraph (a)(2) of this Rule shall be limited to (1) the
    knowledge, skill, experience, training, or education that qualifies
    the witness to testify as an expert in respect of the issue or
    issues in dispute, (2) the opinion of the witness in respect of
    which the witness' expert testimony is relevant to the issue or
    issues in dispute, (3) the facts or data that underlie that
    opinion, and (4) the witness' analysis, showing how the witness
    proceeded from the facts or data to draw the conclusion that
    represents the opinion of the witness.
      (c) When Deposition May Be Taken: A deposition of an expert
    witness under paragraph (a)(2) of this Rule may be taken only after
    a notice of trial has been issued or after a case has been assigned
    to a Judge or Special Trial Judge of the Court, and within the time
    for completion of discovery under Rule 70(a)(2). The taking of such
    a deposition ordinarily will not be regarded as a ground for
    continuance.
      (d) Procedure: (1) In General: A party desiring to depose an
    expert witness under paragraph (a)(2) of this Rule shall file a
    written motion and shall set forth therein the matters specified in
    subparagraph (2). The Court shall take such action on the motion as
    it deems appropriate.
      (2) Content of Motion: Any motion seeking an order authorizing
    the deposition of an expert witness under paragraph (a)(2) of this
    Rule shall set forth the following:
        (A) the name and address of the witness to be examined;
        (B) a statement describing any books, papers, documents, or
      tangible things to be produced at the deposition of the witness
      to be examined;
        (C) a statement of issues in controversy to which the expected
      testimony of the expert witness, or the document or thing,
      relates, and the reasons for deposing the witness;
        (D) the time and place proposed for the deposition;
        (E) the officer before whom the deposition is to be taken;
        (F) any provision desired with respect to the payment of the
      costs, expenses, fees, and charges relating to the deposition
      (see paragraph (g)); and
        (G) if the movant proposes to videotape the deposition, then a
      statement to that effect and the name and address of the
      videotape operator and the operator's employer. (The videotape
      operator and the officer before whom the deposition is to be
      taken may be the same person.)
    If the movant proposes to take the deposition of the expert witness
    on written questions, then the movant shall annex to the motion a
    copy of the questions to be propounded.  The movant shall also show
    that prior notice of the motion has been given to the expert
    witness whose deposition is sought and to each other party, or
    counsel for each other party, and shall state the position of each
    of these persons with respect to the motion, in accordance with
    Rule 50(a).
      (3) Disposition of Motion: Any objection or other response to the
    motion for order to depose an expert witness under paragraph (a)(2)
    of this Rule shall be filed with the Court (along with a
    certificate of service) within 15 days after service of the
    motion.  A hearing on the motion will be held only if directed by
    the Court. If the Court approves the taking of a deposition, then
    it will issue an order which will include in its terms the name of
    the person to be examined, the time and place of the deposition,
    and the officer before whom it is to be taken.  If the deposition
    is to be videotaped, then the Court's order will so state.
      (e) Use of Deposition for Other Than Discovery Purposes: (1) Use
    as Expert Witness Report: Upon written motion by the proponent of
    the expert witness and in appropriate cases, the Court may order
    that the deposition transcript serve as the expert witness report
    required by Rule 143(f)(1). Unless the Court shall determine
    otherwise for good cause shown, the taking of a deposition of an
    expert witness will not serve to extend the date under Rule
    143(f)(1) by which a party is required to furnish to each other
    party and to submit to the Court a copy of all expert witness
    reports prepared pursuant to that Rule.
      (2) Other Use: Any other use of a deposition of an expert witness
    shall be governed by the provisions of Rule 81(i).
      (f) Action by the Court Sua Sponte: In the exercise of its
    discretion the Court may on its own motion order the taking of a
    deposition of an expert witness and may in its order allocate the
    cost therefor as it deems appropriate.
      (g) Expenses: (1) In General: By stipulation among the parties
    and the expert witness to be deposed, or on order of the Court,
    provision may be made for any costs, expenses, fees, or charges
    relating to the deposition.  If there is not such a stipulation or
    order, then the costs, expenses, fees, and charges relating to the
    deposition shall be borne by the parties as set forth in
    subparagraph (2).
      (2) Allocation of Costs, Etc.: The party taking the deposition
    shall pay the following costs, expenses, fees, and charges:
        (A) a reasonable fee for the expert witness, with regard to the
      usual and customary charge of the witness, for the time spent in
      preparing for and attending the deposition;
        (B) reasonable charges of the expert witness for models,
      samples, or other like matters that may be required in the
      deposition of the witness;
        (C) such amounts as are allowable under Rule 148(a) for
      transportation and subsistence for the expert witness;
        (D) any charges of the officer presiding at or recording the
      deposition (other than for copies of the deposition transcript);
        (E) any expenses involved in providing a place for the
      deposition; and
        (F) the cost for the original of the deposition transcript as
      well as for any copies thereof that the party taking the
      deposition might order.
    The other parties and the expert witness shall pay the cost for any
    copies of the deposition transcript that they might order.
      (3) Failure to Attend: If the party authorized to take the
    deposition of the expert witness fails to attend or to proceed
    therewith, then the Court may order that party to pay the witness
    such fees, charges, and expenses that the witness would otherwise
    be entitled to under subparagraph (2) and to pay any other party
    such expenses, including attorney's fees, that the Court deems
    reasonable under the circumstances.
      (h) Other Applicable Rules: The deposition of an expert witness
    under this Rule shall be governed by the provisions of the
    following Rules with respect to the matters to which they apply:
    Rule 74(d) (transcript) and 74(e) (depositions upon written
    questions); Rule 81(c) (designation of person to testify), 81(e)
    (person before whom deposition taken), 81(f) (taking of
    deposition), 81(h) (execution, form, and return of deposition), and
    81(j) (videotape depositions); and Rule 85 (objections, errors, and
    irregularities).  For Rules concerned with the timing and frequency
    of depositions, supplementation of answers, protective orders,
    effect of evasive or incomplete answers or responses, and sanctions
    and enforcement action, see Title X.