The Strange Rules Governing Non-Testifying Litigation Consultants

December 31, 2003

Nearly every federal and state discovery rule weighs in favor of disclosure—or inclusion of withheld documents on a detailed privilege log. The one remarkable exception involves non-testifying litigation experts, who are subject to discovery only under “exceptional circumstances.” Fed. R. Civ. P. 26(b)(4)(B).

In Ludwig v. Pilkington North America, Inc., No. 03 C 1086, 2003 U.S. Dist. LEXIS 17789 (N.D. Ill. Sep. 30, 2003), the court recognized the continuing viability of this glaring exception to the standard discovery approach. The court held that “non-testifying expert information is entirely exempt from discovery not on the basis of privilege but, rather, on the basis of unfairness.” Id. at *10. The court held that documents withheld under this federal rule do not have to be included on any privilege log.

Lawyers should remember this huge exception to the general rule requiring disclosure or detailed privilege assertion.