Fed. R. Civ. P. 26(b)(4)(B) generally precludes discovery of facts known or opinions held by a non-testifying expert, and so it anticipates that such an expert may make his or her own investigation. Thus, the relevant distinction is not between fact and opinion testimony but between those witnesses whose information was obtained in the normal course of business and those who were hired to make an evaluation in connection with expected litigation.
Plaintiff produce company contracted with defendant carrier to ship a cargo of bananas. Plaintiff filed suit against the carrier, asserting that not all of the bananas were shipped and that those which were shipped arrived in poor condition. After the vessel arrived at its destination, plaintiff sent a marine surveyor to examine the vessel and the loading gear. Defendant filed a motion to depose the marine surveyor and to obtain his file. Plaintiff opposed the motion, asserting that he was a non-testifying expert who was excluded from being deposed. The court found in favor of plaintiff, but ordered them to produce documents from the surveyor's file that did not reflect his observations and opinions or were not otherwise privileged.
Was defendant precluded from deposing the expert witness?
The court rejected the carrier's assertion that it ought to be able to depose the surveyor since he was the only one who inspected the vessel, because, the court determined, the carrier had equal, if not more, opportunity to inspect its own equipment.