Testifying experts, especially busy experts, often rely on staff assistants to compile data and help write their expert reports. Under Fed. R. Civ. P. 26 (b)(1), however, those assistants ordinarily are shielded from disclosure as non-testifying experts and are not required to give depositions. But if you can show “exceptional circumstances” required under Rule 26 (b)(4)(D)—particularly that the testifying expert substantially relied on assistance from another person on his or her team, making the expert report a collaborative effort—you may get a discovery order requiring the non-testifying expert to submit to a deposition.
Here are some tips on how to get that deposition—and possibly undermine the opinion of your opposition’s testifying expert:
- Determine who collected and analyzed the data in the expert report. Start by asking the testifying expert at deposition to identify who compiled the data in the case file and who did the research and analysis for the report. If the testifying expert relied on someone to prepare the report or exhibits or both, find out who. Ask the testifying expert to name each person who assisted in preparing the expert report and to describe what and how that person contributed to the expert report. Focus your inquiry on who prepared key parts of the report and the supporting exhibits or compiled data.
- Factually establish hand-in-glove collaboration. Then ask if, in forming their opinion, the expert relied on the parts of the report, exhibits, data or research done by others. If not, why was it included? Your goal is to determine whether the testifying expert and the assistant worked collaboratively or “hand-in-glove” in preparing the analysis and report.
- Ask for billing reports and other written documentation of substantial collaboration. Look for other indications of what courts call “seamless collaboration,” including credits to the assistant stated in the expert report.
Find out how many hours the testifying expert spent on the project, and how many hours the assistant spent. You may need to file a targeted document request to get the testifying expert’s billing records.
- Negotiate an agreement to depose the assistant. Once you have marshalled your facts, contact opposing counsel and explain your reasoning and offer that you are willing to limit your deposition to the assistant’s contributions.
- Move to compel. If the other side still refuses to allow the deposition, file a motion to compel explaining to the court that exceptional circumstances support your motion and that you are not seeking the opinion of the assistant. Make it clear in your motion that you want to test the strength of the facts, data, or studies on which the testifying expert relied. And explain that, without this deposition, you and the court have no way of testing the reliability of the information on which the expert’s opinion relies.
With these basic steps, you will have laid the foundation for the court for one of the rarest of discovery orders—the deposition of a non-testifying collaborating expert.
Nancie Marzulla is a founding partner of Marzulla Law, PLLC in Washington, D.C.