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Matrimonial Matters: Matrimonial lawyers advise disclosure changes

Sara Stout Ashcraft

The Matrimonial Practice Advisory Committee, chaired by Supreme Court Justice Sharon Townsend, has recommended to Chief Administrative Judge A. Gail Prudenti that 22 NYCRR §202.16(g) be amended in regard to expert witnesses in matrimonial actions.

While the rule as it currently stands directs that expert witness reports be “exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date,” there is nothing to indicate what needs to be in the report.

The proposed amendment would require the expert report to contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’ qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.


“It shall not be required that the report of an expert contain ‘drafts of any report’ prepared prior to the completion and submission of the report submitted to the court or communications between the party’s attorney and any witness required to provide an expert report.”

The proposed amendment also provides rules for scheduling, objections, and deposition of experts, including child custody expert witnesses:

(3) If any party intends to introduce expert testimony at trial, no later than 30 days prior to the completion of fact discovery, the parties shall confer on a schedule for expert disclosure, including the identification of experts, exchange of reports and depositions of testifying experts — all of which shall be completed no later than 4 months after the completion of fact discovery. In the event that a party does not consent to the deposition of an expert, the party shall raise the objection to such expert disclosure and shall request a conference to discuss the objection with the court. In ruling upon whether an expert should be compelled to submit to a pretrial deposition, the court shall consider, in addition to such factors as it deems fair, relevant and reasonable, the cost and time involved in the taking of an expert’s deposition. In any case where the expert’s proposed testimony is proffered on the issue of child custody, access, visitation or abuse, the party seeking the pretrial deposition or other pretrial disclosure from the other party’s expert or the court appointed expert, shall be entitled to such disclosure only upon application to the court. In determining such application, the court shall consider, in addition to such factors as it deems fair, relevant and reasonable, the cost and time involved in the taking of an expert’s deposition, and the effect of such deposition upon a court appointed expert’s availability in future cases.

Further, “[t]he note of issue and certificate of readiness may not be filed until the completion of expert disclosure and expert disclosure provided after these dates without good cause will be precluded from use at trial.”

Matrimonial practitioners will be affected if the proposed amendment is accepted into the CPLR, and there is an opportunity to weigh in on this. Anyone wishing to do so is asked to submit comments via email to OCARule202-16-g@nycourts.gov or by mail to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver St., 11th Fl., New York, NY 10004. The deadline for submission is May 22.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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