Gary Dukarich
P.O. Box 14086
Tempe, AZ 85284-0069
(602) 288-3325
[email protected]Bar No. 012119
I support the petition to amend Arizona Rule of Civil Procedure 26(b)(4). Although admittedly anecdotal, my own experience has been that the corresponding federal amendment has beneficially streamlined expert practice, as it recognizes the realities of an expert’s role. I use that latter phrase without a trace of cynicism. Experts actually sit somewhere between the rhetorical poles of “[impartial] witnesses” and “additional advocates for their clients” postulated in the State Bar’s comment on this amendment. In a complex, technical age, that is just where litigants and the legal system need them to sit, and not one juror is confounded by the fact that the plaintiff’s expert espouses ideas consistent with the plaintiff’s position while the defendant’s expert espouses ideas consistent with the defendant’s position.
The State Bar’s comment does an admirable job of outlining the arguments on both sides. Only two of those arguments are further commented on here, the first and fourth cited arguments against the petition.
The first cited argument deserves additional comment since it reflects uniquely on Arizona practice. The argument that guarding internal expert materials runs counter to the expansive Arizona disclosure system as reflected in Arizona Rule of Civil Procedure 26.1 properly appeals to our local achievements, but is specious. The amendment is not in fact contrary to the policies of the Arizona disclosure system. Despite its salutary breadth, Rule 26.1 of course does not anticipate that any internal privileged or work product material should or world be part of its disclosure, and the internal expert materials within the ambit of the amendment fall closer toward that category, as is recognized in the federal amendment. As to this aspect of expert practice, then, there is no conflict between the federal and the Arizona circumstances, and no disgrace in following the federal lead.
The fourth cited ground is significant because it is as much concession as argument. To reason that a pretense should be continued because new technology makes it easier for the reality to defy that pretense, is to concede that what we are dealing with here is just that, pretense and reality. There are concrete practical benefits to moving beyond the pretense, and, if I may borrow from Rule 54(b), there is no just reason for delaying those benefits.