Discovering the Work Of Your Opponent's Consulting Expert

I. INTRODUCTION

Parties often hire consulting experts to assist them in preparing their testifying experts for trial. Under Rule 26(b)(4)(B) ("R.26") of the Federal Rules of Civil Procedure, it is difficult, but not impossible, to gain access to the work of a consulting expert. This article will explain when the rule applies and how it is possible in certain circumstances to discover the opinion of a consulting expert.

Rule 26(b)(4) Trial Preparation: Experts.

(A) Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

The rule is designed to prevent one party from taking advantage of the other party's investigative work. The Advisory Committee made clear that the protections provided by the rule are not based upon the attorney work product privilege. See Notes of the Advisory Committee ('70)("Notes").

Rule 35(b) provides a very narrow exception for the notes, opinions and conclusions of examining physicians. Castillo v. Western Beef, Inc. (E.D. NY December 21, 2005) (Garaufis, J.) (unpublished opinion).

II. DOES THE RULE APPLY?

The first question is whether a potential witness is covered by the rule. According to the rule a consulting expert must be "retained or specifically employed... in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial." R.26. The Committee also commented that the rule "precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specifically employed." See Advisory Committee Notes. See also USM v. American, 631 F.2d 420 (6th Cir.'80) (defendant could not discover letter written by expert informally consulted but not retained by plaintiff); Ager v. Jane, 622 F.2d 496 (10th Cir.'80). [The rule may not apply to witnesses consulted by non-parties. Awkwright v. National, 148 F.R.D. 552 (S.D.W.Va.'93) (rule does not protect work done by expert witnesses who consulted with a third party).]

Medical examiners and treating physicians do not apply as consulting experts. In Harasimowicz v. McAllister, 78 F.R.D.319 (E.D.Pa.'78), a civil rights action, plaintiff sought to take the deposition of the medical examiner for Philadelphia who had done an autopsy on the decedent. The medical examiner's work was not protected by the rule because he was not an expert. The autopsy was a routine job duty of the medical examiner. Thus, he did "not obtain or develop the information in anticipation of litigation or trial." Id. at 320. See also Congrove v. St. Louis-San, 77 F.R.D.503 (W.D.Mo.'78) (treating physician subject to ordinary discovery).

Where a party claims that its employee is a consulting expert, courts have required the party to show that at the time the materials were prepared there was "more than a remote possibility of litigation." Fox v. Cal. Sierra, 120 F.R.D.520 (N.D.Cal.'88). The rule does not apply to ordinary employees. In re Sinking of Barge, 92 F.R.D.486 (S.D.Tex.'81). Where work was done to assist litigation and for ordinary business purposes, "the privilege is available only if the primary motivating purpose behind the creation of [the materials] was to assist in pending or impending litigation." U.S. v. Gulf Oil, 760 F.2d 292 (Temp.Emer.Ct.App.'85); McEwen v. Digitran, 155 F.R.D.678 (D.C.Utah'94) (no protection where accountant's reports were prepared primarily for the preparation of the company's financial statements).

A fact witness who is later retained as an expert or who is later asked to give opinion testimony is not immune from discovery. The Notes caution:

the [Rule] does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.

This is an important caveat. Without this exception, some litigants might attempt to shield fact witnesses from discovery.

This comment applies where a person witnesses an event and is later retained as an expert. Because the person is a fact witness, his personal knowledge is subject to discovery just as any other witness's factual knowledge would be. As one court explained, "the relevant distinction is not between fact and opinion testimony but between those witnesses whose information was obtained in the normal course of business and those who were hired to make an evaluation in connection with expected litigation." Chiquita v. M/V Bolero, 1994 U.S.Dist.Lexis 5820 (S.D.N.Y.'94).

An example of a fact witness turned expert occurred in Silman v. Aetna, 990 F.2d 1063 ('93). In Silman, a fire destroyed plaintiffs' painting business but the defendant insurer denied coverage and asserted that the plaintiffs had set the fire. Plaintiff prevailed at trial. On the appeal the insurer argued that the court erred in allowing plaintiff to offer testimony concerning the cause of the fire from the local fire chief. The fire chief had arrived on the scene twenty minutes after the fire started. Id. at 1068. At trial, defendant objected to the testimony on the ground that plaintiffs had not disclosed the fire chief as an expert witness in their discovery responses and that R.26 should therefore bar his testimony. Although the court agreed that the fire chief had given expert testimony at trial, the court held that his testimony was properly admitted because he had observed the fire. Moreover, he was not a consulting expert because both parties had copies of his statements and had equal access to him before trial. Id. The court's opinion makes clear that either party could have taken the deposition of the fire chief and asked him what he believed caused the fire.

Where a potential witness has first-hand factual information and also acted as a consulting experts one court restricted discovery to factual knowledge and barred inquiry into consulting work. In Adams v. Shell, 134 F.R.D.148 (E.D.La.'90), defendant retained several employees to work with its attorneys in defending litigation arising from an explosion at one of its refineries. Because the employees had factual knowledge concerning the refinery's activities, they could be deposed about facts known and opinions held prior to their retention as consulting expert. The rule, however, shields both facts and opinions known by a consulting expert. See Grindell v. American, 108 F.R.D.94 (W.D.N.Y.'85) (work done by consulting expert retained to assist with litigation and to evaluate automobile for possible improvement was protected; court refused to allow a limited deposition into actual knowledge of the witness). Adams can be viewed as an effort to find a compromise solution to discovery from a consulting expert who also has factual knowledge.

III. WHAT IS REQUIRED FOR A SHOWING OF EXCEPTIONAL CIRCUMSTANCES?

Even if the rule applies, it is possible to discover the work product and opinions of a consulting expert upon a showing of "exceptional circumstances." A party attempting to make such a showing bears a "heavy" burden. See Hartford Fire v. Pure Air, 154 F.R.D.202 (N.D.Ind.'93). Exceptional circumstances are present where the other party lacks the ability to discover equivalent information by other means. Id. at 208. The mere fact that information known by a consulting expert would be helpful to the moving party's expert is, of course, insufficient to show exceptional circumstances. Santos v. Rando, 171 F.R.D.19 (D.RI.'93). Exceptional circumstances are present where one party's experts cannot duplicate a test or an observation by a consulting expert. For example, in Sanborn v. Kaiser, 45 F.R.D.465 (E.D.Ky.'68), plaintiff claimed that defendant's aluminum sewer pipe was defective. Plaintiff's experts were present and took photographs when the pipe was removed and replaced. Plaintiff, however, denied access to defendant's experts. Defendant was entitled to plaintiff's consulting experts' reports and photographs because the information could not be obtained by defendant's experts. See also Delcastor v. Vail, 108 F.R.D.405 (D.Colo.'85) (compelling deposition of consulting expert who investigated a mud slide in part because conditions at the site had changed).

A party may also obtain access to a consultant's work where a testifying expert relies on it in forming his opinion. Heitmann v. Concrete Pipe, 98 F.R.D.740 (E.D.Mo.'83) (testifying expert relied on consulting expert's report); Delcastor at 408 (testifying expert relied on the report of the consulting expert who had the first opportunity to observe conditions after a mudslide). However, if the testifying expert does not consider the work of the consulting expert it is protected. In Dominguez v. Syntex, 149 F.R.D.158 (S.D.Ind.'93), consulting experts examined plaintiff and prepared records. Where plaintiff's testifying expert stated that he read the records but did not consider them in forming his opinion, the court denied defendant's motion to compel production of the records. Id. at 161 (court also noted that defendant could obtain the substantial equivalent by doing its own examination).

IV. WAIVER

Is it possible to waive the protections of R.26? One court has rejected the possibility of waiver because the rule is not based on the attorney work product privilege. Vanguard v. Banks, 1995 U.S.Dist.Lexis 2016*6 (E.D.Pa.'95) (no waiver where report inadvertently turned over to third parties). However, in U.S. v. 22.80 Acres, 107 F.R.D.20 (N.D.Ca.'85), a gov't employee prepared an appraisal report concerning a parcel of real estate in a land acquisition action. Because two gov't employees used the report to refresh their recollection in preparation for their depositions, the court held, pursuant to Fed.R.Evid. R.612(2), that the gov't waived any work product privilege. Id. at 25. It is possible to waive almost any legal right, including the attorney-client privilege, so it follows logically that the protections of Rule 26 can be waived by the careless.

V. CASES WHERE THE EXPERT IS REDESIGNATED

Sometimes in baseball one manager selects a batter to pinch hit, only to learn that the other team is changing the pitcher. In Baseball, the manager is allowed to select another hitter. In litigation, this can be very problematic where a party designates a testifying expert and then revokes the designation and decides that the former testifying expert is really a consulting expert. A party would only do this where the party discovered some huge problem with the testifying expert’s testimony or methodology.

In Netjumper Software, LLC v. Google, Inc., 19-138,04-70366-CV (Keehan, J.) the District Court permitted Plaintiff to redesignate a testifying expert as a consulting expert because the expert had not yet been deposed. See also Ross v. Burlington Northern Railroad Co., 136 F.R.D. 638 (N.D. Ill. 1991) (re-classification of expert as non-testifying where the expert was not deposed). These cases show that it may be possible to avoid disaster where a testifying expert develops an opinion that is inconsistent with the theory of the case of the party that disclosed him. But see Bradley v. Cooper Tire, (D. New Hampshire; January 11, 2007) (Muirhead, J.) (motion to quash denied where the expert produced a report).

VI. RECENT DEVELOPMENTS

Since this note was first published in 1996, there have been several decisions of interest.

In Spearman Industries, Inc. v. St. Paul Fire and Marine Insurance Company, 128 F.Supp. 2d 1148 (N.D. Ill. 2001) (Alesia, J.), the district court considered whether certain testimony by an appraiser was covered by the Rule, and therefore inadmissible. The lawsuit was a coverage case in which the plaintiff insured claimed that its roof was damaged by a winter storm. Defendant contended that the roof was damaged by ordinary wear and tear and thus not covered. There was no dispute that the appraiser had appraised the damage to the roof. The Court found that the appraiser was a non-testifying expert “consulted in anticipation of litigation or preparation for trial.” Defendant was unable to show “exceptional circumstances.” The Court wrote: “Defendant had ample opportunity to conduct whatever investigation it desired, and the site was inspected by [two consultants hired by defendant]. Thus, the court granted Plaintiff’s Motion in Limine to exclude the work and opinions of its consulting expert. The court noted that “any opinions or records developed or acquired by [the appraiser] prior to consultation by plaintiff fall outside the protection of Rule 26(b)(4)(B).

In Portis v. City of Chicago, 02 C 3139 (August 24, 2005) (Nolan, J.), the plaintiffs hired a computer consultant to develop a database supporting their 42 U.S.C. Section 1983 claims. Magistrate Nolan found that because the computer database was an important piece of evidence in the case and because the consultant was “undisputably the person most knowledgeable about the database and its creation, what information went into the database, how the data was input, what procedures were followed to ensure accuracy,” the City could take his deposition. The Court limited the deposition to the creation of the database and the accuracy of the methodology.


V. CONCLUSION

Rule 26 shields most work done by consulting experts. To obtain the protection of the rule a litigant must show that the potential witness was, in fact, a consulting expert. If that showing is made, it is only possible to discover the consultant's opinion upon a showing of "exceptional circumstances." Exceptional circumstances can be shown where the work or analysis done by the consulting expert cannot be repeated by another expert because conditions have changed or where there are no other experts in the field. This is a very heavy burden to meet and those attempting too meet this burden will rarely succeed.


Edward X. Clinton, Jr.
Copyright 2009