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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 21 May 2012 04:20 PM by  Gary.Dukarich
R-11-0017 Ariz. R. Civ. P. 26(b)(4)
 2 Replies
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Author Messages

06 Apr 2011 10:50 AM

    Would conform Arizona rule to Rule 26(b)(4), Fed. R. Civ. P., to provide work product protection for most communication with expert witnesses.

    James D. Smith
    State Bar No. 016760
    2 N. Central Ave.
    Suite 2200
    Phoenix, AZ 85004
    Phone: 602-364-7000
    Facsimile: 602-716-8011

    Filed April 6, 2011.

    Comments Due May 21, 2012.

    Rejected 8/28/2012

    03 Apr 2012 09:05 AM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266

    21 May 2012 04:20 PM
    Gary Dukarich
    P.O. Box 14086
    Tempe, AZ 85284-0069
    (602) 288-3325
    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.
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