Expert Witnesses in North Dakota
In North Dakota, an expert witness is a person who is qualified to provide specialized opinion testimony in a legal proceeding because of their knowledge, skill, experience, training, or education in a particular field, and whose testimony helps the court (or jury) understand complex evidence or determine a fact at issue.
Rules Governing Disclosure
In North Dakota civil litigation, expert disclosure is governed primarily by Rule 26(b)(4) of the North Dakota Rules of Civil Procedure.
Under N.D.R.Civ.P. 26(b)(4)(A), when a party expects to call an expert witness at trial:
Identify each expert witness expected to testify.
State the subject matter on which the expert is expected to testify.
Provide the substance of facts and opinions to which the expert is expected to testify.
Include a summary of the grounds for each opinion (i.e., the bases and reasons for the expert’s opinions).
This is typically done through interrogatories or other discovery responses as part of the litigation process.
Formal expert reports (like those required under the Federal Rules) are not automatically mandated in North Dakota unless the court orders one. Nevertheless, parties must disclose a written summary of the expert’s opinions and basis for those opinions.
Once an expert is identified, the opposing party may depose that expert. A party may also discover facts known or opinions held by an expert expected to testify, including the facts and data the expert considers.
Experts retained solely to assist in preparation (and not expected to testify) generally are not discoverable. However, a party may obtain discovery from such experts if there's exceptional circumstances and it is impracticable to get the information by other means.
Parties have a continuing duty to update expert disclosures if they learn that information previously provided is incomplete or incorrect in a material respect.
This means if an expert changes their opinions, new facts come to light, or the expert’s qualifications change, the party must supplement the disclosure. Failing to do so can result in sanctions or exclusion of the expert’s testimony.
If a party fails to timely and properly disclose expert information as required, the court may limit or preclude the expert’s testimony at trial, or impose other sanctions, unless the failure was justified or harmless.
Unless doing so would result in manifest injustice, the court must require the party seeking discovery to pay the expert a reasonable fee for the time spent responding to discovery under Rule 26(b)(4)(A) or (B). In addition, for discovery conducted under Rule 26(b)(4)(A), the court may require—and for discovery under Rule 26(b)(4)(B), the court must require—the requesting party to reimburse the opposing party for a fair portion of the fees and expenses reasonably incurred in obtaining the expert’s facts and opinions.
Expert Disclosure Timing
Under the North Dakota Rules of Civil Procedure, the timing of expert disclosure in civil cases is flexible and not governed by fixed, automatic deadlines. Rule 26(b)(4) does not impose a default schedule for identifying experts or disclosing their opinions; instead, expert disclosure is typically triggered by discovery requests, most commonly interrogatories seeking the identity of testifying experts, the subject matter of their testimony, and the substance and basis of their opinions. In such cases, the expert information must be disclosed within the ordinary discovery response period unless the court orders otherwise. In practice, North Dakota courts frequently manage timing through scheduling or pretrial orders, especially in complex matters, and once a court sets expert disclosure deadlines, those deadlines are controlling and strictly enforced. In addition, Rule 26(e) imposes a continuing duty to supplement expert disclosures in a timely manner if opinions change or new information renders prior disclosures incomplete or inaccurate. Although rebuttal experts are not expressly addressed by rule, courts generally require their disclosure within the framework established by scheduling orders or sufficiently in advance of trial to avoid unfair surprise. Failure to disclose experts or opinions within the applicable discovery period or court-ordered timeline may result in sanctions under Rule 37, including limitation or exclusion of expert testimony, particularly where the delay is unjustified and prejudicial.
Attorney–Expert Communications
In North Dakota, attorney–expert communications do not receive the same categorical work-product protection that exists under Federal Rule 26(b)(4)(C). While federal practice expressly protects most attorney–expert communications (subject to the three well-known exceptions for compensation, facts/data, and assumptions), North Dakota has not adopted those 2010 federal amendments. As a result, there is no rule-based presumption in North Dakota that communications between counsel and a testifying expert are protected.
Under N.D.R.Civ.P. 26(b)(4), discovery of testifying experts is broader and focuses on the substance of the expert’s opinions and their bases. Communications between counsel and a testifying expert may be discoverable to the extent they relate to the expert’s opinions, the facts or data considered, or how the opinions were formed. Traditional attorney work product—such as counsel’s legal theories or mental impressions—may still be protected, but that protection is not automatic and is evaluated case by case rather than through a rule like Rule 26(b)(4)(C).
Accordingly, while compensation arrangements are discoverable and facts, data, or assumptions supplied by counsel and relied upon by the expert are discoverable, this is not because North Dakota mirrors Federal Rule 26(b)(4)(C). Instead, it is because North Dakota applies a more open discovery approach to testifying experts, with protection turning on classic work-product principles rather than a specific attorney–expert communication shield.
Under the North Dakota Rules of Civil Procedure and Evidence, there is no rule imposing a fixed numerical limit on the number of expert witnesses a party may designate. North Dakota does not cap experts by subject matter or by side. Instead, trial courts retain broad discretion to manage expert testimony under Rule 403 of the North Dakota Rules of Evidence (excluding cumulative or wasteful evidence), Rule 26(b) (proportionality and scope of discovery), and their inherent authority to control trial proceedings.
As a result, North Dakota courts may limit or exclude expert testimony that is cumulative, repetitive, or disproportionate to the needs of the case, even if the experts are otherwise qualified and properly disclosed. At the same time, courts routinely allow multiple experts on different aspects of the same case—for example, separate experts on standard of care, causation, damages, valuation, or future losses—where the issues are distinct or the subject matter is sufficiently complex. In practice, litigants typically present one expert per discrete technical issue, but courts will permit more than one expert on an issue when justified by differing disciplines, methodologies, or analytical focus, provided the testimony aids the trier of fact rather than merely reinforcing the same opinion.
So, while North Dakota imposes no hard numerical limit, expert usage is effectively governed by judicial discretion, proportionality, and the prohibition on cumulative evidence.
Rebuttal Experts
Under the North Dakota Rules of Civil Procedure, rebuttal experts are permitted, but they are not expressly defined or governed by a separate rule the way they are in federal practice. Instead, rebuttal experts arise through Rule 26(b)(4) discovery practice and are controlled primarily by court scheduling orders and fairness principles. In practice, North Dakota courts allow parties to disclose rebuttal experts after reviewing the opposing party’s expert disclosures, provided the rebuttal testimony is genuinely limited to responding to, explaining, or contradicting opinions offered by the initial expert, and does not introduce new, independent theories that should have been part of the party’s case-in-chief.
Out-of-State Experts
North Dakota’s general expert disclosure and admissibility framework under the North Dakota Rules of Civil Procedure and Rules of Evidence does not limit experts based on location—an expert may be from out of state as long as they meet the usual qualification standards. Under Rule 702 of the North Dakota Rules of Evidence, a witness must be qualified by knowledge, skill, experience, training, or education in the relevant field, and their specialized knowledge must assist the trier of fact. There is no statutory requirement that an expert must be licensed or physically practicing in North Dakota solely because they are from another state; the focus is on expertise, not geography.
However, in medical malpractice actions, North Dakota law includes a separate statutory “expert affidavit” requirement under N.D.C.C. § 28-01-46 that must be satisfied to maintain the claim. This statute requires the plaintiff to serve an affidavit from a qualified medical expert supporting the negligence claim within a specified time after filing, and that affidavit must identify the expert, their field, and the basis for their opinion. Courts interpret this to mean the expert must be sufficiently familiar with the applicable standard of care and the relevant facts of the case, but there is no explicit statutory mandate that the expert be licensed or practicing in North Dakota. The statute focuses on the substance of the expert opinion rather than the expert’s geographic licensure, and North Dakota case law has not imposed a separate in-state practice requirement for the expert under that statute.
So, while there are qualification requirements (expertise and relevance) that apply regardless of location, there are no additional fees, licensing, or residency requirements imposed solely because an expert is from out of state in general civil practice. In medical malpractice cases, the expert must simply meet the statutory requirements for the affidavit and be qualified to render the needed opinion.
Criminal Cases – Rule 16, North Dakota Rules of Criminal Procedure
Under Rule 16 of the North Dakota Rules of Criminal Procedure, criminal expert disclosure is more structured and time-sensitive than in civil cases. When the defendant makes a proper discovery request, the prosecution must disclose the names of expert witnesses it intends to use in its case-in-chief, along with any written reports, test results, or findings prepared by those experts. If no written report exists, the State must still provide a written summary of the expert’s expected testimony, including the expert’s opinions and the bases for those opinions. This obligation is designed to allow meaningful preparation and cross-examination rather than trial by surprise.
Rule 16 also imposes reciprocal disclosure obligations on the defense, primarily under Rule 16(e), when the defense intends to introduce expert testimony on specified issues such as mental condition or other expert evidence subject to reciprocal discovery. In such cases, the defense must similarly disclose expert names and provide reports or summaries of opinions and bases upon request.
Deadlines in criminal cases are typically stricter and court-controlled, often tied to arraignment orders, pretrial conference schedules, or specific discovery orders issued by the court. Courts enforce these timelines closely, and late or incomplete expert disclosures—by either side—can result in sanctions, including exclusion of expert testimony, continuances, or other remedies necessary to protect the defendant’s right to a fair trial.
Consequences of Non-Disclosure (Rule 37):
Under Rule 37 of the North Dakota Rules of Civil Procedure, courts have broad authority to impose sanctions when a party fails to comply with discovery obligations, including expert disclosure requirements under Rule 26(b)(4). Available sanctions may include excluding or limiting the expert’s testimony, ordering payment of reasonable expenses or attorney’s fees, and, in more severe cases, striking pleadings, staying proceedings, dismissing claims, or entering default judgment.
