If a non-expert witness was retained or specially employed, their identity or opinions may be discoverable if there are exceptional circumstances justifying disclosure. Conversely, if the expert was informally consulted in anticipation of litigation but not retained or specially employed, then discovery may not be had.
A medical malpractice lawsuit was filed against a doctor and a hospital on behalf of a woman severely injured during her birth. The doctor filed interrogatories requesting the identity of all persons she contacted with regard to the doctor's care and treatment. An appointed magistrate ordered compliance with the interrogatories and rejected the woman's position that compliance was not required under Fed. R. Civ. P. 26(b)(4) as applied to non-witness experts. On review, the district court affirmed the magistrate's order. The attorney filed a formal response to the order and refused to comply. The district court entered a civil contempt order against the attorney, which she appealed. On appeal, the court vacated the order and remanded the matter to the district court.
Absent extraordinary circumstances, may a party discover the names of retained or specially-employed, consultative non-witness experts that do not testify?
“[T]he status of the non-witness experts against whom discovery is sought should be undertaken as a two-step process. First, was the expert informally consulted in anticipation of litigation but not retained or specially employed? If so, no discovery may be had as to the identity or opinions of the expert. Second, if the expert was not informally consulted, but rather retained or specially employed in anticipation of litigation, but not expected to testify at trial, do exceptional circumstances exist justifying disclosure of the expert's identity, opinions or other collateral information?”