Everyone can agree that an expert consultant who does not testify can be beneficial in some instances for various reasons, particularly in connection to applicable discovery procedures. But legal professionals often voice contrary views on discovery rules that apply to these expert consultants.
The work of a consultant, in very general terms, does not necessarily need to be disclosed to opposing counsel, but the testifying expert’s opinions, notes, and work product are all discoverable. A party in a case may not discover facts or opinions held by an expert who is not expected to testify as a witness at trial except under exceptional circumstances (Rule 26(b)(4)(D)(ii). This specific rule can be advantageous during trial preparation as consultants can more thoroughly dive into the facts of the case and issues related to the situation without worry about a legal obligation to share (disclose) their opinions with the opposing counsel. The consultant becomes a part of the legal team and can invoke similar work-product privileges as an attorney would in the situation. So, it is almost as if the expert consultant can be hired confidentially, but not quite.
While the consultant’s work product is generally not discoverable, (except under exceptional circumstances), there are split opinions (depending on the jurisdiction) as to whether or not a consultant’s identity must be disclosed. Rule 26 is silent on this particular issue, and no other federal rule addresses the disclosure directly. Some courts have interpreted Rule 26 discovery limitations as including the disclosure of an expert consultant’s identity, and others have not.
In Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ. 1559 (S.D.N.Y. July 29, 2015), the court held that the non-testifying expert’s identity is protected from disclosure (except for exceptional circumstances). When making this decision, the court cited other cases that held the same opinion both inside and outside of their jurisdiction. In Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 122 (S.D.N.Y. 2014), the court prevented the discovery of the informal consulting expert’s identity. In Dover v. British Airways, PLC (UK), 2014 WL 4065084, at *1 (E.D.N.Y. Aug. 15, 2014) affd, 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014) the court also prevented discovery of an expert consultant noting that the privilege could be waived if claims made or defenses presented called into question the consultant’s work product. But not all case law protects the identity of non-testifying experts. For instance, in Baki v. B.F. Diamond Construction, 71 F.R.D. 179 (D. Md. 1976), the court held that the identity and locations of individuals with knowledge of discoverable matter must be supplied per Rule 26. Other courts have followed Baki despite previous case law to the contrary.
While there are significant discovery advantages to retaining non-testifying experts, it is essential to approach the situation cautiously as the identities of the experts could be disclosed with their work potentially subject to discovery in certain circumstances and jurisdictions.