Litigants relying on testifying experts can look to federal or state court rules in determining what they must disclose or may withhold. In contrast, courts take widely varying views of those issues in addressing litigants’ non-testifying experts.
In Kaleta v. City of Holmes Beach, Case No. 8:22-cv-2472-CEH-JSS, 2023 U.S. Dist. LEXIS 121660 (M.D. Fla. July 14, 2023), the court noted that the Eleventh Circuit had not decided whether litigants must identify their non-testifying experts. Remarkably, the court acknowledged that “[t]here appears to be a split in authority regarding whether the identities of non-testifying experts that are ‘retained or specially employed’ are protected from disclosure by Rule 26(b)(4)(D).” Id. at *9-10. The Tenth Circuit says yes, but the Ninth Circuit says no. The court ultimately found the litigant’s non-testifying experts’ identity discoverable, apparently at least in part because such “disclosure presents little risk of exposing counsel’s mental impressions, conclusions, opinions, or legal theories.” Id. at *15-16 (citation omitted).
Non-testifying experts can play a key role in litigants’ trial preparation. Those litigants’ lawyers should not assume that a local rule with which they are familiar will apply in other courts.