The Federal Rules allow discovery of non-testifying trial consultants only under “exceptional circumstances.” However, courts still wrestle with the permissibility of general background questions about such trial consultants’ role in the litigation.
In In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003), Cendant learned that its adversary Ernst & Young had used a jury consultant to prepare for depositions, and sought discovery about the consultant. The court held that the work product doctrine covered communications between Ernst & Young (or its lawyers) and the jury consultant, and that Cendant could not prove the necessary “exceptional circumstances.” Id. at 668. Interestingly, the court nevertheless allowed Cendant to ask a former Ernst & Young senior manager being deposed whether his “anticipated testimony was practiced or rehearsed.” Id. at 668.
While litigators should take comfort in the Third Circuit’s acknowledgment that the work product doctrine covers jury consultants’ work, they should be prepared to deal with questions about whether a deposition witness’s testimony has been rehearsed.