When Can You Obtain Discovery of an Adversary’s Non-Testifying Expert?

March 27, 2001

Non-testifying experts receive considerable protection under federal and state rules. Under Federal Rule 26(b)(4)(B), for instance, a party may conduct discovery (through interrogatories or by deposition) of experts who are not expected to testify at trial only “upon a showing of exceptional circumstances under which is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”

Although it ultimately found the grounds inapplicable, a court recently explained that a non-testifying expert might be subjected to discovery “‘where the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery’ [because, among other things] an item has been destroyed or its physical condition is deteriorated after only one party‚Äôs expert has had the opportunity to observe the item.” Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 417 (D. Kan. 2000) (internal citations omitted).

Lawyers involved in products liability or other cases in which a physical object or contextual condition might change should remember that even their non-testifying experts might be fair game for discovery.