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.
• Understand Rule 32 and Getting a Case Ready for
  Trial!

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
• Identities at time of initial disclosures, if
  known. 26(a)(2)(B)
• No requirement that expert be one who will be
  used to support partys claim or defense.
• If later select or come to know, disclose
  seasonably etc. but
• 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, again, that just because facts are conveyed
  to an expert, they do not become 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.

9
Use of Discovery at Trial or in Motions

• RFP Testimony by person who can lay foundation
  for a document disclosed during discovery
• Interrogs. 33(c)
• RFAs. Admissible

• Depositions. R32
• Any depo may be used against a party who had
  notice of depo for any purpose allowed by FRE
• A depo of a party/officer of a party may be used
  by an adverse party for any purpose.
• Any depo may be used if the witness is
  unavailable in terms of 32(a)(3).
• The rule of optional completeness applies.
  32(a)(4).

10
Pre Trial Order 26(a)(3)

• What
• List of witnesses
• Will call / may call
• Depo degs
• Exhibit list
• Trial briefs other documents as ordered.

• When How
• 30 days before trial or as per SO, plaintiff
  sends its materials to defendant defendant then
  exchanges
• Objections made, optional completeness/counter-deg
  s made, etc.
• Filed with court before docket call.