NCJ Number
117340
Date Published
1989
Length
6 pages
Annotation
Although Rule 26(b)(4) of the Federal Rules of Discovery now permits far greater discovery of expert testimony than before, it retains the principle that it is offensive to let one side gain relatively free insight and preparation from a source for which the other side has paid.
Abstract
The rule provides that if facts have been acquired or opinions developed by an expert in anticipation of litigation, and if that expert is to testify, the party (not the expert) must answer interrogatories about the expert's facts and opinions as well as their basis. Upon motion, the court may order further discovery. The rule also states that an expert who will not testify but who has been retained or consulted in anticipation of litigation is not subject to any discovery unless, for exceptional reasons, the party seeking discovery cannot otherwise obtain the information it needs. Under the rule, a party who is authorized by order to make further discovery beyond the interrogatories may be ordered to pay for the expert's time spent in that discovery and may indeed be ordered to share a part of the expert's basic fee charged to the party that hired him. The rule creates several status classifications, from which various discovery consequences follow. This raises such issues as what discovery of an expert may be conducted if he/she falls in more than one classification or none, or if he/she was a participant in the underlying transactions or is named as a defendant. This article discusses these issues based upon relevant court cases.