The Two Sides of Discovery with Non-Testifying Experts

Non-testifying experts, also referred to as consultants, serve an array of purposes throughout the litigation process. The versatility of non-testifying experts, coupled with relatively favorable discovery rules governing the disclosure of their identities and work product, make them a valuable tool in the litigation arsenal.

The Advantages of Non-Testifying Experts

First, non-testifying experts can assist in the hiring process of testifying expert witnesses. As an authority in the same field, consultants can more accurately vet an expert witness than an attorney who is less familiar with the subject matter. Once a testifying expert is selected, the consultant can act as an “expert of your expert,” by reviewing the witness’s studies, analysis, and conclusions for accuracy and reliability. Such a review may be particularly helpful in the face of a Daubert challenge. The non-testifying expert can ensure that the witness’s testimony is up to par from an insider’s point of view.

Furthermore, in the event of an emergency or unforeseen circumstance that prevents the witness from testifying, a consultant can easily take the stand and replace or supplement the witness’s testimony (provided all applicable discovery rules are followed). As an expert understudy, the consultant will be familiar not only with the subject matter but also with the particular methodology utilized to draw conclusions about any facts at issue.

Assuming that the consultant will not need to take the stand in an emergency, an attorney is free to choose a consultant based solely upon knowledge and skill set, with little regard to one’s ability to testify. As many attorneys are aware, a witness’s level of expertise is not the most important factor when trying a case. A common concern at trial is whether a witness is amiable, professional, and easy to understand in the eyes of the jury, as well as the judge. As a result, the demeanor of an expert must always be considered, sometimes causing otherwise experienced experts to be passed by for a more affable witness. With consultants, however, the issue of “likeability” is moot. Therefore, consultants can be selected from a more academic standpoint.

Discovery Rules for Consultants: Contrary Views

The fact that an expert consultant does not testify can be beneficial to a case for many reasons, especially regarding the applicable discovery procedures. The discovery rules governing both testifying and non-testifying experts can have a significant impact on a case.

In very broad terms, the consultant’s work product need not be disclosed to opposing counsel, whereas the testifying expert’s opinions, notes, and work product are all discoverable. Under Rule 26(b)(4)(D)(ii) of the Federal Rules of Civil Procedure, a party may not discover facts known or opinions held by an expert who is not expected to be called as a witness at trial except upon a showing of exceptional circumstances. This privilege is obviously advantageous to trial preparation—consultants can delve into the facts and issues of the case without concern that their opinions will need to be disclosed to opposing counsel. In essence, the consultant becomes a part of the legal team and is able to invoke the same work-product privileges as an attorney would. Therefore, unlike the expert witness, the consultant can be retained confidentially, right?

Well, almost. A consultant’s work product is generally not discoverable (absent a showing of exceptional circumstances). However, the legal community is split across jurisdictions as to whether a consultant’s identity needs to be disclosed. Rule 26 is silent on this issue, and no other Federal Rule addresses the disclosure directly. Some courts have read Rule 26’s discovery limitations to cover the identity of consultants, while others have not.

For example, most recently, in Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ. 1559 (S.D.N.Y. July 29, 2015), the court held that a non-testifying expert’s identity is protected from disclosure, absent exceptional circumstances. In its decision, the court cited other cases both in and outside its district that have held the same opinion. In Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 122 (S.D.N.Y. 2014), the court precluded discovery of the identity of an informal consulting expert. In Dover v. British Airways, PLC (UK), 2014 WL 4065084, at *1 (E.D.N.Y. Aug. 15, 2014) aff’d, 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014) the court held the same, noting that the privilege could nonetheless be waived if the party asserts claims or defenses that put the consultant’s work product “at issue.”

In Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496, 500-01 (10th Cir. 1980), the Tenth Circuit held that the Rule’s preclusion of discovery against non-testifying experts “not only encompasses information and opinions developed in anticipation of litigation, but also insulates discovery of the identity and other collateral information concerning experts consulted informally.”

However, not all case law protects the identity of non-testifying experts. In Baki v. B.F. Diamond Construction, 71 F.R.D. 179 (D. Md. 1976), the court held that “the identity and locations of persons having knowledge of any discoverable matter” must be supplied, citing Rule 26(b)(1), which provides the general scope of discovery. As Baki explains:

[T]he names and addresses, and other identifying information, of experts, who have been retained or specially employed in anticipation of litigation or preparation for trial and who are not expected to be called as witnesses at trial, may be obtained through properly framed interrogatories without any special showing of exceptional circumstances in the absence of some indication that such information by reason of facts peculiar to the case at issue, is irrelevant, privileged, or for some other reason should not be disclosed.

Despite previous case law to the contrary, other courts have followed Baki. See Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D.Pa. 1978) (held that the Baki analysis is “the sounder view”); Threlkeld v. Haskins Law Finn, 1990 WL 124876 at *1 (E.D.La. Aug.21, 1990) (summarily rejecting Ager); Lesclard v. Babcock & Wilcox, 1990 WL 124297 at *1 (E.D.La. Aug. 9, 1990) (finding Baki persuasive and noting that “the only reason either side could have for objecting to such a simple discovery obligation is a desire to thwart the full and candid discovery”).

Consequently, although there are significant discovery advantages to retaining non-testifying experts, it is important to tread with caution, as their identities may be disclosed, with even their work product subject to discovery in certain circumstances. Despite the contrary views regarding discovery rules, a non-testifying expert provides a slew of advantages to litigation. By hiring both non-testifying and testifying experts, they each play a distinctive role in maximizing the likelihood of a favorable outcome at trial.