How Do the Waiver Rules Apply to Non-Testifying Experts?

June 28, 2006

Under Federal Rule of Civil Procedure 26(b)(4)(B), a party can withhold information about specially retained litigation-related non-testifying experts absent “exceptional circumstances.” Courts have not agreed on the extent to which the normal waiver rules apply to such non-testifying experts.

In In re Polymedica Corp. Securities Litigation, 235 F.R.D. 28 (D. Mass 2006), plaintiffs relied on standard waiver principles in seeking production of documents created by PricewaterhouseCoopers LLP (PWC) in connection with a report PWC prepared for the defendants, and which defendants had given to plaintiffs and the SEC. The court rejected plaintiffs’ waiver arguments, noting that “there is no evidence that the Defendants sought to make use of the report in a judicial proceeding,” put the report at issue, or sought to use PWC’s testimony. Id. at 33. The court explained that the plaintiffs could interview witnesses, review documents, and otherwise conduct their own investigation and prepare their own report.

Although not every court would be so generous, companies should take some solace in this common-sense approach.