In some cases, it may be beneficial to retain a consulting, or nontestifying, expert to assist with the litigation. Consulting experts can help counsel to better understand factual information, such as how a product works or a particular industry norm. They can also assist counsel in vetting and hiring testifying expert witnesses, preparing for depositions of the opposing side’s experts, and formulating overall litigation strategy. Moreover, a consulting expert provides counsel with the benefit of the expert’s expertise without having to worry about whether the expert has prior testifying experience, or the expert’s “likability” in the eyes of the judge and the jury.
Federal Rule of Civil Procedure 26 [login required] largely protects information related to consulting experts from discovery absent a showing of “exceptional circumstances.” However, not all courts protect the identity of consulting experts. Moreover, a consultant’s work cannot be protected from disclosure if that work product is used as the basis of another testifying expert’s opinion, or if the consultant later is retained as a testifying expert in the same litigation. This article provides a brief overview of the discovery considerations to keep in mind when working with consulting experts.
Rule 26 allows for discovery related to a consulting expert when it is “impracticable” for the party to obtain facts or opinions on the same subject by other means. Fed. R. Civ. P. 26(b)(4)(D)(ii); see also Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd. P’ship, 154 F.R.D. 202, 207–08 (N.D. Ind. 1993). This is a heavy burden, and courts have only found “exceptional circumstances” in two narrow situations: (1) where the consulting expert’s observations were not observable by an expert of the party seeking discovery, see Delcastor, Inc. v. Vail Assocs., Inc., 108 F.R.D. 405, 409 (D. Colo. 1985); and (2) where it is cost prohibitive to replicate discovery on a contested issue, In re Zyprexa Prod. Liab. Litig., No. 04-MD-1596 (JBW), 2008 WL 4850122, at *3 (E.D.N.Y. Nov. 6, 2008). Absent one of these showings, a consulting expert’s work product is protected from discovery.
Some courts have also read this discovery limitation to apply to the identity of the nontestifying experts. See, e.g., Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 622 F.2d 496, 500–01 (10th Cir. 1980) (holding that Rule 26 precludes from discovery the identity of an informal consulting expert); Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 122 (S.D.N.Y. 2014) (same). For example, in Liveperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ. 1559 (RWS), 2015 WL 4597546, at *1 (S.D.N.Y. July 30, 2015), the defendant sought an “expert disclosure provision” in a protective order that would require disclosure of the identity of nontestifying experts granted access to certain confidential data. The court rejected the defendant’s request and concluded that a nontestifying expert’s identity is protected from discovery “absent a showing of exceptional circumstances.” Id. at *2. The court emphasized that revealing a consulting expert’s identity had work product implications, rendering a showing of exceptional circumstances appropriate. Id.
However, other courts, including those in the Third Circuit, have held that the disclosure of a nontestifying expert’s identity is required upon a showing of relevance. See, e.g., Eisai Co. v. Teva Pharm. USA, Inc., 247 F.R.D. 440, 442 (D.N.J. 2007); Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179, 181–82 (D. Md. 1976). In Eisai, the court held that the disclosure of the expert’s identity is not subject to Rule 26(b)(4)’s heightened “exceptional circumstances” standard and concluded that the individual’s name was relevant because it could lead to information regarding “any discoverable matter.” 247 F.R.D. at 442. However, the Eisai court did also note that a party cannot discover the name of an expert who is “informally consulted” but never retained. Id. (citing Fed. R. Civ. P. 26 advisory committee’s note to 1970 amendment).
In light of this split, counsel should research law in the jurisdiction where the case is pending prior to retaining consulting experts, and also ensure that consultants are aware their identity could be disclosed in certain jurisdictions. Counsel should also consider public policy arguments to make to the court about why the identity of nontestifying experts should not be discoverable.
In re Abilify: When a Consultant Transforms into a Testifier
In In re Abilify (Aripiprazole) Products Liability Litigation, No. 3:16-md-2734, 2017 WL 2225614, at *1 (N.D. Fla. May 15, 2017), the court addressed the scenario where an expert was transformed from an “informal” consultant to a retained testifying expert. In that pharmaceutical products liability case, the plaintiffs’ counsel used an expert to discuss causation of impulse control disorders. Id. Two months before the plaintiffs formally retained the expert, the expert published a study concluding that the drug Abilify could cause impulse control disorders, such as compulsive gambling. Id. Defense counsel wanted to depose the expert on the methodologies used in his research, and specifically wanted to inquire into whether his communications with the plaintiffs’ counsel before he was formally retained impacted how he conducted his study. Id. Defense counsel argued that the plaintiffs waived the work product privilege because the plaintiffs’ counsel allegedly provided input for the published study on which they intended to rely. Id. at *3.
The court allowed limited discovery about whether the plaintiffs had influenced the study—regardless of whether those communications were during the “informal” consultant time. Id. The defendants were also permitted to inquire into whether the expert adjusted the timing or methodology of the study following communications with the plaintiffs’ counsel. Id. at *3 n.3. The court additionally held that the defendants could not inquire into work product unless the deposition revealed that the plaintiffs’ counsel influenced the conduct of the study, in which case the court would rule on whether that input constituted a waiver of work product protection. Id. at *3.
In re Abilify demonstrates that counsel on both sides must be especially careful when utilizing consulting experts, because both parties may retain consulting experts who later become testifying experts. Because a consulting expert may transform into a testifying expert during the course of the case, counsel should tread carefully in communications with consultants.
Michelle Ramirez is an associate at Sidley in Chicago, Illinois. Thanks to Sidley summer associate Alyssa Lattner for her help with this article.
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