Court Explores Nature of Non-Testifying Litigation Expert

June 11, 2003

A specific Federal Rule (Fed. R. Civ. P. 26(b)(4)(B)) protects from disclosure facts found or opinions formulated by an adversary’s non-testifying expert, absent “exceptional circumstances.”

The Court in Crouse Cartage Co. v. National Warehouse Investment Co., No. IP 02-071 C T/K, 2003 U.S. Dist. LEXIS 478 , at *6-7 (S.D. Ind. Jan. 13, 2003), found that a party could rely on this rule to protect from disclosure materials prepared by a real estate appraiser, noting that the “key inquiry” is “whether the consultation took place in anticipation of litigation.” The court held that the party could withhold the appraisal results — although acknowledging that “[t]he underlying rule of nondisclosure invites shopping for favorable expert witnesses and facilitates the concealment of negative test results.” Id. at *6.

Clients and lawyers should remember the availability of this broad protection.