By Isaac Thorp
This is the second part of a two-part series about recent amendments to Rule 26(b)(4) of the North Carolina Rules of Civil Procedure, which are applicable to actions filed on or after October 1, 2015. This post primarily concerns categories of information related to experts that are for the most part immune from discovery.
The first part of the series addressed the following amendments:
Rule 26(b)(4)a.3: Disclosure through interrogatory answers
Rule 26(b)(4)a.2: Option to disclose expert report
Rule 26(b)(4)b.1: Depositions of testifying experts
This second part will address the following amendments:
Rule 26(b)(4)d: Trial preparation protection for draft reports of testifying experts
Rule 26(b)(4)a.3: Trial preparation protection for consulting experts
Rule 26(b)(4)e: Trial preparation protection for communications between an attorney and her testifying experts
Rule 26(b)(4)c: Payment of experts
Rule 26(b)(4)d: Trial Preparation Protection for Draft Reports of Testifying Experts
Rule 26, as amended, establishes that drafts of expert witness reports are not discoverable. Rule 26(b)(4)d states:
Trial preparation protection for draft reports or disclosures. Drafts of [expert] reports…are protected from disclosure and are not discoverable regardless of the form in which the draft is recorded.
N.C.G.S. § 1A–1, Rule 26(b)(4)d.
This amendment brings welcome relief to attorneys and judges who have long litigated disputes over whether drafts of expert reports had to be produced.
However, the amendment does not address the question of whether drafts of expert witness interrogatory answers or expert designations are protected from discovery. Although the subheading of Rule 26(b)(4)d is titled “Trial preparation protection for draft reports or disclosures[,]” the language of the subsection addresses only “drafts of reports.” An attorney who has elected not to exchange expert reports may craft an expert witness interrogatory answer or expert designation and send the draft to the expert to review. The process of refining the interrogatory answer or designation may generate a few drafts. Sometimes, opposing counsel may ask your expert to produce any drafts of expert designations or interrogatory answers that were generated between her and you during the litigation. Although most attorneys object on the grounds of work-product protection, it would be helpful if Rule 26 explicitly identified drafts of expert witness designations and interrogatory answers as protected material.
Federal case law does not provide guidance because the federal rule requires the exchange of expert witness reports, thus eliminating the need for expert witness interrogatory answers or designations.
Practice Tip: Until our appellate courts determine the scope of the amendment, practitioners should assume that draft expert interrogatory answers and designations may be discoverable.
Rule 26(b)(4)e: Trial Preparation Protection for Communications Between an Attorney and her Testifying Experts
The amended rule also establishes that most communications between an attorney and her experts are not discoverable, regardless of the form the communication takes. Exceptions are limited to communications that:
- Relate to compensation for the expert’s study or testimony.
- Identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed.
- Identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
N.C.G.S. § 1A–1, Rule 26(b)(4)e.
Federal Rule 26 was amended to include the same provision in 2010, so there has not been much appellate litigation about trial preparation protections for communications between counsel and her experts. However, at a minimum, correspondence between a party’s expert and the party’s attorney is discoverable to the extent that it addresses the subjects listed above. See Estate of Allison v. Scoggins, No. 1:09cv468, 2011 WL 650383 (W.D.N.C. Feb. 10, 2011) (correspondence from counsel to expert containing underlying facts related to subject litigation is discoverable if the expert considered it in forming opinions).
Practice Tip: If you provide facts or data to your expert, you should assume that this information is discoverable.
Here’s why. The standard for determining whether facts and/or data that an attorney provides to her expert are discoverable is lower than the standard for determining whether assumptions the attorney provides are discoverable. Facts or data provided by the attorney are discoverable if the expert considered them, even if she does not rely on them in forming her opinions. Assumptions provided by the attorney are discoverable only if the expert relied on them in forming her opinions.
If an expert reviews facts or data an attorney provided but does not rely on them in forming her opinions, it’s hard to argue that the expert did not at least consider the information. The process of determining whether to rely on the facts or data requires their consideration before they can be accepted or rejected.
For these reasons, if you provide facts or data to your expert, you should assume that this information is discoverable.
Rule 26(b)(4)c: Payment of Experts for Deposition Testimony
The amended rule clarifies that a party seeking to depose an expert is required only to “pay the expert a reasonable fee for the time spent at that expert’s deposition.” N.C.G.S. § 1A–1, Rule 26(b)(4)c. Before the amendment, the court had more discretion to determine the costs the party seeking to depose an expert had to pay. For example, a party could request that her expert be paid not only for time actually spent in the deposition, but also for time spent preparing for the deposition, or travel to and from the deposition. The court’s discretion has been significantly reduced by the amended rule, although the court may adjust the costs under rare circumstances, e.g. to avoid manifest injustice. The amended rule codifies what has been a common practice – paying an expert only for the time she spent in the deposition.
Rule 26(b)(4)b.2: Disclosure of Information Related to Consulting Experts
The amended rule also provides trial preparation protection for consulting experts who are employed to consult with attorneys about trial preparation, but are not expected to testify. A party may not discover facts or opinions known by consulting experts by interrogatory, deposition or any other method, except in the following circumstances:
- The expert is a physician to whom a party must submit for a physical or mental examination pursuant to an order of the court, as provided in Rule 35 of the North Carolina Rules of Civil Procedure (Physical and mental examinations of persons). Discovery is limited to the parameters set forth in Rule 35(b); or
- Upon showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
N.C.G.S. § 1A–1, Rule 26(b)(4)b2.
Rule 35 (“Physical and mental examination of persons”) concerns circumstances in which the physical or mental condition of a person is in controversy and the court orders an examination. Requirements for disclosure of the physician’s report are outlined in Rule 35(b)(1) and (2).
A party also may compel disclosure of information from a consulting expert upon a showing of exceptional circumstances under which it is “impracticable” (very difficult or impossible) for the party to obtain facts or opinions on the same subject by other means. North Carolina’s appellate courts have not yet addressed the issue of what constitutes “exceptional circumstances.”
Rule 26 of the Federal Rules of Civil Procedure has contained a provision providing trial preparation protection for consulting experts since at least the 1990s. Federal case law has addressed the issue of facts that constitute “exceptional circumstances.” Courts are reluctant to find exceptional circumstances if the moving party can retain her own expert to provide the requested information or opinions. See Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416, 420 (N.D. Ill. 2011) (where plaintiff had retained its own expert to undermine the opinions of a consulting expert, exceptional circumstances did not exist). See Faller v. Faller, No. DKC 09-0889, 2010 WL 3834865, at *16 (D. Md. Sept. 28, 2010) (observing that “[s]everal courts have recognized the availability of other means of obtaining information sought under Rule 26(b)(4)(B) as a conclusive factor militating against a finding of exceptional circumstances.”).
Commentators have confirmed this trend, noting that “[t]he party seeking discovery from nontestifying retained experts faces a heavy burden.” 8A Charles Alan Wright & Arthur R. Miller, et. al., Federal Practice and Procedure § 2032 (3d ed. 2017). “The burden on the moving party is to show circumstances such that it cannot get any facts or opinions on the subject in which it is interested.” Id.
Although showing “exceptional circumstances” is difficult, it’s not impossible. An “exceptional circumstances” analysis is fact-intensive, so any generalization about when courts may find that the threshold has been satisfied should be viewed critically. Even so, a few scenarios may meet the threshold and provide the necessary exceptional circumstances needed to warrant discovery of a consulting expert.
First, exceptional circumstances may permit discovery from a consulting expert if the consulting expert’s report provides a basis for the testifying expert’s opinions, or there is evidence of substantial collaboration between the consulting and testifying expert. See U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222 (D.D.C. 2012) (factual information about storage and care of bulletproof vests provided by the consulting expert to the testifying expert constituted exceptional circumstances that justified obtaining discovery from the consultant in an action alleging that a manufacturer sold defective vests); see also Herman v. Marine Midland Bank, 207 F.R.D. 26 (W.D. N.Y. 2002) (defendant was entitled to depose plaintiff’s consulting expert who provided substantial assistance to plaintiff’s testifying expert, performing more than half of the total hours it took to prepare the report, and whose work accounted for more than half the fee paid for production of the report.)
Exceptional circumstances also may exist where the consulting expert has information that is relevant to a central issue in a case, and the information is not available to the opposing party regardless of how many experts the opposing party retains. See Faller v. Faller, No. DKC 09-0889, 2010 WL 3834865, at *16 (D. Md. Sept. 28, 2010) (consulting expert’s appraisal was relevant to issue of whether the seller breached his fiduciary duty to a trust when he sold property at a price that trust beneficiaries contended was too low). See also Bio–Rad Labs., Inc. v. Pharmacia, Inc., 130 F.R.D. 116 (N.D. Cal. 1990) (defendant in patent–infringement suit made showing of “exceptional circumstances,” where the expert in question was a patent attorney who had prepared and prosecuted a patent application, and a central issue in the case was whether the patent applicant intentionally or mistakenly made certain representations to the patent office).
Exceptional circumstances also may arise where material inspected by the consulting expert has since been destroyed. In this circumstance, regardless of the number of additional experts retained, the opportunity for independent inspection has been lost. See Delcastor, Inc. v. Vail Assoc., Inc., 108 F.R.D. 405 (D. Colo. 1985) (report of consultant expert containing his opinion as to the cause of a mud slide which gave rise to the litigation was discoverable on ground of exceptional circumstances, because the consultant was the only expert who examined the slide area immediately following the slide and before the terrain had changed). Also see Wright, supra, § 2032.
There also are circumstances that allow discovery from a consulting expert without a showing of exceptional circumstances. Where a witness discovers relevant information before she is retained to serve as an expert consultant, she is considered an ordinary witness. Discovery about what she learned as an ordinary witness is permissible. See Essex Builders Group, Inc. v. Amerisure Ins. Co., 235 F.R.D. 703 (M.D. Fla. 2006) (defendant was permitted to depose plaintiff’s consulting expert regarding any facts or opinions the expert held before being retained in anticipation of litigation, without a showing of exceptional circumstances). See also Indus. Maritime Carriers, Inc. v. PT (Persero) Inka, 179 F.R.D. 153 (E.D. Pa. 1998) (marine surveyor, who was an expert witness the plaintiff did not intend to call at trial, could be deposed about his observations during his initial inspection of a vessel, which were made in the ordinary course of business, and before he was retained as an expert. However, discovery of facts or conclusions that were developed in anticipation of litigation was not permitted).
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