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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.
A party may, through interrogatories or by 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 preparation for trial and who is not expected to be called as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery 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").
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." 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." 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 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.
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. 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).
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.
R.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.
* The above material was excerpted, modified or otherwise prepared by the 'Lectric Law Library from a work by Edward X. Clinton, Jr. of Mayer, Brown & Platt, Chicago, Il. American Bar Assn. All rights reserved. The original was found at the ABA's website at www.abanet.org
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