Under Federal Rules of Civil Procedure, Rule 26(b)(4), only experts retained for trial and trial preparation can be subjects of discovery. If the expert is retained only as a consultant but not in anticipation of trial testimony, then his work on the case is probably not discoverable.

In one case, the court considered four factors in determining whether the expert was a retained witness for trial purposes, or an informally consulted expert:

• The manner in which the consultation was initiated.
• The nature, type and extent of information and material provided to the expert.
• The duration and intensity of the consultation relationship.
• The terms of the consultation, such as items of payment and like considerations.   

(Sources: Mueller, p. 17, citing Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496-501, 502 (10th Cir. 1980); see also Olson v. Accessory Controls and Equipment Corp., 735 A.2d 881 (1999), judgment aff'd, 757 A.2d 14, 27 (2000), wherein the court, relying partly on a retention letter between an attorney and an environmental consulting company, held that the consulting company's report was privileged because the report was clearly created to facilitate the sharing of legal advice.)

There is also an exception in the discovery rules involving the testimony of an expert who is retained in anticipation of litigation but is not expected to testify at trial. Normally, that witness's files and opinions are not subject to the usual rules of discovery.

If a party can show that exceptional circumstances exist — that the information being sought is not otherwise available — some courts will carve out an exception and allow discovery for a non-testifying expert. In such cases, the opposition usually has to show the following:

• The expert has information about an item that has been destroyed or changed.
• The party seeking discovery cannot otherwise obtain an expert.
• Few experts in this area or discipline exist.
• All other available experts have been retained by the opposition.

 (Source: Mueller, p. 18.)

Back Forward