If you consult an expert to discuss e-discovery issues arising in litigation or hire a computer forensics consultant to help address technical issues, but they will not testify at trial, must you disclose their identities to your opponent?
As is the case with all good legal questions, it depends. In many courts, probably not absent exceptional circumstances.
The issue of whether non-testifying expert witnesses must be identified recently arose in Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ. 1559 (S.D.N.Y. July 29, 2015), in which one party wanted language in a protective order requiring identification of persons with whom documents designated as “highly confidential – attorneys eyes only” were shared.
However, the court denied the request citing Federal Rule of Civil Procedure 26(b)(4)(D) that states, absent exceptional circumstances,
. . . a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.
The court in Liveperson, following what it believed to be the “predominant” rule among courts, and citing (among other cases) Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496, 500-01 (10th Cir. 1980), concluded that Rule 26(b)(4)(D) also protected the identity of non-testifying experts. As a result, the court refused to add the provision of the protective order.
Despite the court’s opinion in Liveperson, some courts permit litigants to request disclosure of non-testifying experts generally following Baki v. B. F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976). The court in Baki concluded
that the 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.
The takeaway? Whatever side of the argument you happen to be on, hope for the best and prepare for the worst.
As is the case with all contested legal issues, it might depend on how the judge views the issue. In fact, some courts are divided internally over the question. See, e.g. In re: Welding Fume Product Liability Litigation, No. 1:03-CV-17000. MDL Docket No. 1535 (N.D. Ohio Feb. 19, 2008) (observing “of the four district court opinions from the Fifth Circuit that address the issue of whether the identities of consulting, non-testifying experts may be discovered, two cases followed the rule Set out in Baki and allowed discovery, two cases followed the rule in Ager. . . .”).
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