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In re Shell Oil Refinery - 132 F.R.D. 437 (E.D. La. 1990)

Rule:

A party seeking to show exceptional circumstances under Fed. R. Civ. P. 26(b)(4)(B) carries a heavy burden. The exceptional circumstances requirement has been interpreted by the courts to mean an inability to obtain equivalent information from other sources.

Facts:

On May 5, 1988, the catalytic cracking unit (CCU) at the Shell Oil Refinery, Norco, Louisiana, exploded. The first of several suits ultimately certified as a class action was filed that day. The day after the explosion, the parties entered an agreement giving the Plaintiff's Legal Committee (PLC) and its experts access to the CCU to inspect, measure, and photograph. During the course of the litigation, PLC filed several motions seeking expert discovery, particularly the identity of Shell's experts and the results of the tests conducted by Shell on the CCU material. In each instance, the court ruled against allowing the discovery, unless Shell intended to use the expert or test result at trial. Before the court was PLC's Motion for Reconsideration seeking results of tests conducted by Shell on material from the CCU and leave of court to depose the authors of the preliminary expert reports.

Issue:

Should plaintiff’s attempt to obtain discovery from experts expected to be called at trial be granted?

Answer:

No.

Conclusion:

The court ruled that plaintiff's attempt to obtain discovery from experts expected to be called at trial was premature. Under the court's case management order, the parties were not yet obligated to disclose the identity of those experts. The court found that two employees who had performed tests had been retained or specially employed by defendant in preparation for trial, within the scope of Fed. R. Civ. P. 26(b)(4)(B). However, the court held that exceptional circumstances which would permit discovery under Fed. R. Civ. P. 26(b)(4)(B) were not present. The court found that plaintiff wanted defendant's test results simply to avoid the expense of conducting its own tests. Therefore, the motion for reconsideration was denied.

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