Understand how R26 operates generally with respect to experts.

1

• Understand how R26 operates generally with
  respect to experts.
• Understand the difference between consulting and
  testifying experts, and when discovery of facts
  known or opinions held by consulting experts is
  discoverable.

2
Experts

• A Doctor who operates on Bob is an expert,
  under 26(a)(2)(A), but not, without more, under
  26(a)(2)(B).
• What more is required?
• Also, a party cant make an fact witness
  retroactively an expert, either, and hide
  information learned before retention.

• Three types
• (a) Experts who are also fact witnesses,
  unretained in terms of 26(a)(2)(B).
• Experts who were specially retained or are
  employed regularly testify and who will
• (b) consult, but will not testify
• (c) consult and testify.

3
Treatment of Each Kind of Expert

• Unretained Experts
• Identify. 26(a)(2)(A).
• May be deposed. 26(b)(4)(A)
• Testifying Retained Experts
• Identify. 26(a)(2)(A)
• Must prepare report. 26(a)(2)(B)
• Can be deposed after report. 26(b)(4)(B)
• Nontestifying Retained Experts
• No express requirement they be identified, but
  identity is not protected.
• No discovery of absent special showing. 26(b)(4).

• When
• Initial disclosure? Later?
• Reports (if rule requires)
• 90 days before trial or as per SO by party to
  support 30 days later if to attack or as per SO.
  26(a)(2)(C).
• What See 26(a)(2)(B).
• Duty to supplement. 26(a)(2)(C).
• Depositions
• Any time after 26(f) conference if no report is
  required by rule.
• If report is required, after its served.

4
Problem 2 p. 447

• 2(a)(1) to (4)
• 2(b)
• 2(c)

5
Obtaining Info of Consulting Experts

• 26(b)(4)(B) A party may, through
  interrogatories or by deposition, discover facts
  known or opinions held by an expert who 1 has
  been retained or specially employed by another
  party 2 in anticipation of litigation or
  preparation for trial and 3 who is not expected
  to be called as a witness at trial only a as
  provided in Rule 35(b) or b upon a showing of
  exceptional circumstances under which it is
  impracticable for the party seeking discovery to
  obtain facts or opinions on the same subject by
  other means.

6
Practical Impact of Protecting Consulting Expert
Opinions

• If a party hires an expert and gets good opinion,
  party (likely) will use it so, the rules
  basically result in letting parties hide bad
  opinions by not designating the expert to testify.

• Why do we do that?
• What would be the cost of the opposite approach
  all opinions are discoverable?

7
Thompson (447)

• Facts?
• What discovery did defendant seek? How did
  plaintiff try to stop it?
• Why was the report discoverable?
• Change the facts to make it non-discoverable
  under 26(b)(4).
• Do you think Dr. Lucas was hired specially in
  anticipation of litigation?

8
Chiquita (448)

• Facts?
• Whose motion is involved?
• Why was he an expert and not a fact witness?
• If he had been a fact witness, would there be any
  argument about discoverability?
• Why does court find no exceptional
  circumstances?
• Change facts to make outcome different.

• Note, like WP just because facts are conveyed to
  an expert doesnt make them undiscoverable
  information does not become exempt from
  discovery merely because it is conveyed to a
  non-testifying expert. Thus, while the file may
  contain Mr. Winers recorded observations and
  opinions which need not be disclosed, it may also
  include discoverable information provided to Mr.
  Winer by others. Such documents shall be
  produced.