Generally, business valuation experts should provide a written report explaining their opinion of the value of the asset or business interest that is the subject of the litigation. However, the procedural rules that govern the disclosure of expert witnesses and requirements relating to written appraisal reports differ drastically between jurisdictions. These rules should be reviewed to ensure that all the required information is covered, and expert is timely disclosed so that he or she may testify at trial.
Several discovery devices are available to the parties in a civil or criminal proceeding. A discovery device is a procedure employed by a party, before trial, to require the adverse party to disclose information that is essential for the preparation of the requesting party’s case. The most used discovery devices in the context of an asset or business valuation are:
- Disclosure and written report requirements
Below is a summary of discovery rules by jurisdiction. This summary is provided for elaboration purposes only and is not updated regularly. Parties should consult an attorney for the specifics of the jurisdiction in which the case is being litigated:
|Jurisdiction||Written Expert Report Required||Interrogatories to expert allowed?||Deposition of expert allowed?|
|Alabama||No||Yes||With Court Order Only|
|Arkansas||No||Yes||With Court Order Only|
|Delaware||No||Yes||With Court Order Only|
|District of Columbia||No||Yes||With Court Order Only|
|Guam||No||Yes||With Court Order Only|
|Illinois||If Interrogatory Served||Yes||Yes|
|Indiana||No||Yes||With Court Order Only|
|Kentucky||No||Yes||Must serve interrogatories first|
|Maine||No||Yes||With Court Order Only|
|Maryland||If Interrogatories Served||Yes||Yes|
|Massachusetts||No||Yes||With Court Order Only|
|Minnesota||No||Yes||With Court Order Only|
|Mississippi||No||Yes||With Court Order Only|
|Montana||No||Yes||With Court Order Only|
|Nebraska||No||Yes||With Court Order Only|
|New Jersey||If interrogatory served||Yes||Yes|
|New Mexico||No||Yes||With Court Order Only|
|New York||No||Yes||With Court Order Only|
|North Carolina||No||Yes||With Court Order Only|
|Ohio||No||Yes||Must Show Exceptional Circumstances|
|Oklahoma||No||Yes||Must Serve Interrogatories First|
|Pennsylvania||If Interrogatory served, discretionary with answering party||Yes||With Court Order Only|
|Puerto Rico||No||Yes||With Court Order Only|
|Rhode Island||No||Yes||Must serve interrogatories first|
|South Dakota||No||Yes||With Court Order Only|
Only Six State Jurisdictions i.e. Alaska, Colorado, Nevada, New Hampshire, Utah, and the Virgin Islands, required a written expert report under rules like Federal Rules (specifically FRCP 26(a)(2).
California requires a written report if demand is made.
Iowa and Texas require a written report if requested in discovery.
Illinois, Maryland, and New Jersey require a written report if an interrogatory is directed to a party who will call the witness.
Louisiana requires a written report upon contradictory motion of any party or on the Court’s motion.
Pennsylvania provides that the party answering an interrogatory may provide the expert’s report in response or have the expert answer the interrogatory.
The remaining jurisdictions do not require a written report or summary by an expert witness to be provided to the other parties.