Subsection (B), however, says that discovery of facts and opinions via interrogatories or deposition of an expert who is not expected to be called as a trial witness is available only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Thus, a kind of safe harbor from discovery is provided for the nontestifying expert consultant. Some courts even have referred to the rule in terms of "privilege" describing the protection, for example, as the "free consultation privilege" or the "consultant witness privilege."1 If you look carefully at Rule 26(b)(4)(B), however, it refers specifically to discovery from the expert by interrogatories or deposition. It does not mention any safe harbor from a request for production of documents addressed to the nontestifying consultant. Is this an intentional omission? An oversight by the drafters? Does it matter? What if the retained consultant is served with a subpoena duces tecum under Rule 45 seeking disclosure only of the consultant's documents or materials? Does the safe harbor extend to the documents as well? This issue arose recently in the Plymovent2 case, a battle between two competitors who manufacture diesel exhaust removal systems. After expedited discovery, the court held a preliminary injunction hearing. In preparation for the hearing, plaintiff retained expert company A whose vice president conducted a videotaped emissions control study comparing the competing systems and created an accompanying report. Plaintiff submitted both the videotape and report to the court in advance of the hearing. Plaintiff originally intended to call the expert to testify at the hearing but, after the court commented adversely on the quality of the report and offered plaintiff's counsel an opportunity to reconsider relying on the materials, plaintiff decided not to use them. The court denied preliminary injunctive relief and the parties proceeded to engage in formal discovery. Plaintiff produced the report and videotape to defendant along with invoices from expert A charging plaintiff for the emissions study and attendance at the preliminary injunction hearing. Later, plaintiff responded to defendant's inquiry saying that it did not expect to call anyone from expert A as a trial witness. Defendant thereafter served expert A with a subpoena seeking documents referring or relating to the report and videotape.3 Plaintiff moved to quash the subpoena. The Magistrate Judge granted the motion holding that, as a nontestifying expert, A's records were protected since defendant had not demonstrated any "exceptional circumstances." Defendant appealed the ruling to the district court. Policy Considerations The safe harbor for nontestifying consultants stems from policy considerations enumerated by the court: (1) encouraging counsel to obtain necessary expert advice without fear that the adversary may obtain such information; (2) preventing unfairness that would result from allowing an opposing party to reap the benefits from another party's efforts and expense; (3) preventing a chilling effect on experts serving as consultants if their testimony could be compelled; and (4) preventing prejudice to the retaining party if the opposing party were allowed to call at trial an expert who provided an unfavorable opinion to the party who first retained them.4 Further, while discovery from testifying experts is deemed "essential" to allow adequate preparation for cross-examination and eliminate surprise at trial, there is no need for a comparable exchange of information regarding nonwitness experts who act as consultants and advisers to counsel.5 Defendant's first argument in favor of compelling production was that Rule 26(b)(4)(B) did not mention requests for documents and addressed only interrogatories and depositions. The court rejected this contention because any party could then circumvent the safe harbor rule simply by serving a subpoena. Further, many of the rule's underlying policy concerns would be undermined. Defendant could be just as likely to reap the benefits of plaintiff's work by obtaining documents as it would through deposition testimony or interrogatory answers. Compelled disclosure of documents would have the "same chilling effect on free consultation between a retaining party and its expert . . . ." The court therefore would not permit an "end run around the policies of the rule." The court, however, cited scant case law supporting this view. One decision had reasoned that, even though Rule 26(b)(4)(B) does not speak to requests for documents pursuant to Rule 45 subpoenas, "it is by now a truism that the various discovery devices function as an integrated system, and that in deciding the limits of privilege, we should treat the various devices similarly."6 No Waiver A second interesting question was whether plaintiff's reliance on the videotape and report at the preliminary hearing effected a waiver of Rule 26(b)(4)(B)'s protection. Further, did the later production of these materials in discovery effect a waiver? The Magistrate Judge held that no waiver occurred because plaintiff "pulled back" its expert before he could testify at the hearing. Additionally, the district court clearly did not give the videotape and report any weight. Indeed, the preliminary injunction was denied. The magistrate relied on the decision in Callaway Golf,7 where a party had changed the designation of its expert from testifying to nontestifying after his deposition was scheduled and after the expert's report had been provided to the opposing party, but before his deposition actually took place. The court in Callaway Golf observed that a "common theme" is apparent from the case law, namely, that the conversion of a designated trial expert into a consulting expert is allowed and results in insulating that expert from discovery, absent a showing of exceptional circumstances. Even in cases where disclosure of expert opinions clearly occurred before the change in designation, the result was the same as in nondisclosure cases: "Divulging the expert opinions did not alter the analysis." Therefore, a deposition of the redesignated expert in that case was denied, unless limited to facts and opinions the expert developed before he was hired as an expert witness. In Plymovent, the facts were somewhat different, however. Expert A was never actually designated as a testifying witness. On the other hand, not only did plaintiff disclose the videotape and report, it initially relied on those materials at the preliminary injunction hearing. Did such differences compel a different result from that in Callaway Golf? The court observed that case law on the subject is not uniform. For example, a federal court in Iowa considered the actual designation of a trial expert the determinative fact in assessing whether there was a waiver.8 Some courts have held, however, that disclosure or reliance on a nontestifier's facts and opinions waives Rule 26(b)(4)(B)'s protection.9 Callaway Golf and others rule instead that a disclosure, such as an exchange of expert reports, does not effect a waiver.10 More recently, in the Intervet case, a federal court in Nebraska quashed a subpoena served on an expert who had previously submitted a declaration in support of a motion for preliminary injunction in a separate but related litigation involving the same parties.11 The mere fact that an expert offered a declaration for a preliminary injunction hearing was held not to create a waiver of the consultant's protection against disclosure. First, compliance in the case with expert disclosure requirements under Rule 26 was not then mandatory in the context of the preliminary hearing. Second, Rule 26(b)(4)(B) allows the deposition of an expert whose opinions may be presented "at trial." Since the declarant had not been designated a testifying expert in the related case, his opinions would not have been admissible at trial due to lack of compliance with Rule 26(a)(2)(B). Further, the related case resulted in no preliminary injunction being granted. Rather, that case was dismissed for reasons unrelated to the merits. The court in Plymovent found the Intervet ruling persuasive. In both cases no relief was granted by the court on the basis of the expert's materials. Further, in both cases, the court gave no weight to the experts' materials. Thus, plaintiff's withdrawal in Plymovent of its expert at the preliminary hearing was deemed effective. The limited reliance on the expert's report and videotape did not waive the protection of the consultants' rule. Preliminary Hearings Such analyses can stimulate interesting considerations of strategic warfare by creative counsel. There are a number of potential settings other than injunction proceedings where preliminary hearings can involve expert submissions or testimony short of a trial on the merits. For example, Federal Evidence Rule 104(a) hearings on the reliability of experts under Daubert could involve affidavits, testimony or even hearsay materials proffered by experts who have not at that point been designated as testifying experts "at trial." Could such consultants, but not-yet-designated-testifier-at-trial witnesses, be deemed immune from producing materials which underlie their perceived facts and opinions? That hardly seems fair. Or is mere participation by a consultant in a hearing a basis for waiver? Or, for example, consider a preliminary hearing on some foundational showing where expert consultants might be used to support or oppose the admissibility of a piece of evidence, or a fingerprint analysis, or a statistical survey or whether a particular writing asserted to be authoritative or genuine truly is. Could such an expert "consultant," not yet designated for testifying "at trial," nevertheless be allowed to proffer his or her affidavit or testimony at a hearing, yet be considered immune from first producing underlying documents or tests or other materials that might impeach the information to which he or she will testify at the hearing? Policies of fairness and the search for the truth would seem to justify treating such adversarial preliminary hearings as antagonistic special proceedings that require adequate disclosure from retained consultants. Indeed, ideally, that disclosure should be made sufficiently before the hearing to allow preparation for cross-examination and avoid surprise. In effect, such preliminary contests can be pivotal battles, the equivalent of early, but potentially decisive mini-"trials," in which most of the policy imperatives that justify discovery from experts designated to testify at trial likewise govern. Should courts be willing to compel timely disclosure from consultants retained to submit evidence at such preliminary hearings even though they are not yet designated trial "testifiers"? In Plymovent the expert did not get to testify at the hearing. But what if he did? What if his testimony were given weight or at least considered by the court? The early hearing does not seem to be the "at trial" setting the discovery rule contemplates. Does this mean that the early status of nondesignation as a trial testifier immunizes the expert from discovery on the subject matter of the hearing? Or should the expert's involvement in an adversarial proceeding short of trial be deemed a waiver? A hint that the situation indeed may be different is found in a footnote in the Plymovent opinion. In footnote 14 the court says that "had preliminary injunctive relief been granted, or if this Court had relied on the materials, the result might well be different. Additionally, [plaintiff] has not given any indication that going forward, it intends to rely on the report and videotape in any manner. Should [plaintiff's] position change, the Court may have to revisit the issue in light of the changed circumstances."12 Has the expert discovery rule created a substantive gap between testimony "at trial" and testimony or affidavits proffered at hearings? Is that gap to be bridged only by notions of "waiver"? Conclusion It is not clear whether the only operative mechanism for getting underlying materials or discovery from a consultant appearing in an early hearing is or should be a "waiver." What is clear, however, is the seeming unfairness of using a "consultant" who is not yet designated to testify "at trial" as a sword in some adversarial testimonial hearing and then raising that expert "consultant's" status as a purported "nontestifier" at trial to be a shield against timely and relevant disclosure. If he or she testifies (or submits an affidavit or other evidence) at a meaningful hearing, then arguably he or she is really a "testifier" regardless of the rule's time frame reference, "at trial." Michael Hoenig is a member of Herzfeld & Rubin. Endnote: _________________________________________________________________________________________ 1. See cases cited in Plymovent Corp. v. Air Technology Solutions, Inc., 243 FRD 139, 143 n. 6 (D.N.J. 2007). 2. Id. 3. 243 FRD at 142 (subpoena's requests repeated by court). 4. Id. at 143. 5. Id. 6. Id. at 144 (citing In re Painted Aluminum Products Antitrust Litigation, 1996 WL 397472 at *1, 1996 U.S. Dist. LEXIS 9911 at *2 (E.D. Pa. July 9, 1996). 7. Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc., 2002 WL 1906628, U.S. Dist. LEXIS 15429 (D. Del. Aug. 14, 2002). 8. See House v. Combined Ins. Co. of America, 168 FRD 236, 245 (N.D. Iowa 1996). 9. Atari Corp. v. Sega of America, 161 FRD 417, 418-20 (N.D. Cal. 1994) (videotape of nontestifying expert's interview and report provided during settlement discussions waived 26(b)(4)(B)'s protection); U.S. v. Hooker Chemicals and Plastics Corp., 112 FRD 333, 339 (W.D. N.Y. 1986) (affidavit of expert offered in opposition to or in support of a motion for summary judgment effects waiver of right not to have deposition taken). 10. See also, FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1042, 1046-47 (E.D. Cal. 2002) (exchange of expert reports no waiver of protection); In re Shell Oil Refinery, 132 FRD 437, 440 (E.D. La. 1990) (exchange of "preliminary" expert reports in complex class action case did not waive protection). 11. Intervet, Inc. v. Merial Ltd., 2007 WL 1797643, 2007 U.S. Dist. LEXIS 44970 (D. Neb. June 30, 2007). 12. Plymovent 243 FRD at 146 n. 14. |
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