Ky. Sup. Ct. Order 2023-15 BCR 5.9

Expert discovery in Business Court cases shall comply with Kentucky

Civil Rules 26.01(4), except as modified by this Rule.

a. Unless otherwise stipulated or ordered by the court, a disclosure of

a witness who is retained or specially employed to provide expert testimony in

the case or one whose duties as the party’s employee regularly involve giving

expert testimony must be accompanied by written report—prepared and signed

by the witness—and must 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’s 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.

b. Unless otherwise stipulated or ordered by the Court, a disclosure

of a witness who is expected to provide expert testimony in the case but who is

not required to provide a written report under (A) of this Rule must state:

i. the subject matter on which the witness is expected to

present evidence under Kentucky Rules of Evidence 702,

703 or 705; and

ii. a summary of the facts and opinions to which the witness is

expected to testify.

c. A party may depose any person who has been identified as an

expert whose opinions may be presented at trial. If BCR 5.9(a) requires a report

from the expert, the deposition may be conducted only after the report is

provided.

d. Drafts of any report or disclosure required under subsections (a)

and (b) of this Rules are protected, regardless of the form in which the draft is

recorded.

e. Communications between a party’s attorney and any witness

required to provide a report under subsection (a) of this Rule, regardless of the

form of the communications, are protected except to the extent that the

communications:

i. relate to compensation for the expert’s study or testimony;

ii. identify facts or data that the party’s attorney provided and

that the expert considered in forming the opinions to be

expressed; or identify assumptions that the party’s attorney

provided and that the expert relied on in forming the

opinions to be expressed.