Expert Information

Expert information refers to the work product of experts in preparation for trial. There are several categories of experts. For the purposes of simplicity, these notes will categorize them into two types. The additional notes will then expand on these categories.

First, there are expert witnesses who are called to testify at trial. These witnesses and their work product can be freely discovered because it would be unfair for one side to have sole access to a witness. This is because at trial, if one party has sole access, it greatly disadvantages the other party as to what the witness may say. Because the details of expert testimony could become quite advanced, both parties are allowed equal access to these witnesses.

Second, there are expert witnesses who are not called to testify at trial. Instead, they are there to only consult and inform a lawyer as to the details regarding their expertise. These witnesses are protected from discovery. The reason being that the information gathered was used to prepare for trial. If the court would allow these witnesses to be discovered, it would incentivize one party to free ride on the work of the other lawyer to find, gather, and pay and expert for their information. As a result, this would greatly disadvantage the party who did the work.

Additional Notes

There are two main types of witnesses. First, lay witnesses which focuses on fact. They have personal knowledge about facts or alleged facts pertaining to the case. Second, expert witnesses. Expert witnesses do not testify about the specific facts about the case. They are called to provide their “opinion” about what the facts mean. A person is an expert if they have knowledge that is outside the range of a normal person (specialized knowledge).

There are several categories of expert witnesses:

  • Testifying experts
    •  Definition: An expert that the attorney plans on using at trial.
    • Subject to discovery without a court order through 26(b)(4)(A), this includes communications between the attorneys and the expert.
  • Non-testifying experts
    •  Definition: An expert that the attorney does not plan on using at trial but employs to help prepare a case.
    • Only subject to discovery if the circumstances are exceptional through 26(b)(4)(D)
  • Consulted but not employed experts
    •  Definition: These are experts who are interviewed to be experts but ultimately the lawyer determines not to use the expert (often these are experts that disagree with the lawyer’s position).
    • Although there is no rule that determines if they are discoverable but many courts say that there is no need to disclose their identity.
  • Fact witness experts
    •  Definition: These are experts that also meet the requirements of a fact witness. That is, they have direct information about the case as well as heightened knowledge. A good example here would be an Emergency Room physician.
    • Treated as a lay witness and thus are not able to invoke a work product privilege.
  • Independent experts
    •  Definition: These are individuals who have relevant expert information but they must be reasonably compensated for that use.
    • Their information may only be subpoenaed if they are reasonably compensated. See Rule 45(c)(#3)(B)(ii).

Discovery of Non-Testifying Witnesses

Thompson v. Haskell Company

65 Fair Empl.Prac.Cas. (BNA) 1088 (M.D. Fla. 1994).

Thompson is the plaintiff. She filed a 26(c) motion for protective order.


Is the psychological report from this expert discoverable?


Expert testimony from a expert not expected to testify at trial is only discoverable if the court has a very good reason to. One of these good reasons includes that the information cannot be discovered through other means.


The content is discoverable. The protective order is denied.


The plaintiff alleges that she was sexually harassed in the workplace by a coworker. When she brought up the concerns, she alleges that her position was terminated because she did not comply with the harassment.

After she sued, her previous attorney commissioned an expert to conduct a psychological evaluation of the plaintiff. The expert testimony left notes about her condition which is now being requested by the defendant.


The information here is discoverable. Normally expert information of this kind is protected. However, because this information is “one of a kind” it can be discoverable. The defendant would not be able to access this information from anywhere else. Additionally, the information can be vital to the case and is necessary for the defense to prepare a quality defense. Thus, refusing discovery would unfairly disadvantage the defendant.

Additional Notes

It is important to note that the expert created the psychological report 10 days after the incident had occurred. This case was filed and this point is several months later. As a result, the defendant realized the discovery request is made a couple years after the event occurred.

However, the plaintiff had consulted and determined not to use this expert. Thus, this expert likely benefits the defense. So, the plaintiff is trying to protect the witness from being discovered and the defense wants to have the report.

The court determines to grant the request to discover the report. A large part of the plaintiff’s claim is that she suffered damages at the time of the event. So, her mental state could be in a completely different position now. Thus, if the request is denied, then the defendants would be disadvantaged. This is because only one doctor conducted the investigation, a new report is not practical, etc.

Although there is usually a psychotherapist-patient confidentiality, this privilege was waived because the client sued for emotional damages.

Chiquita Intern. Ltd. v. M/V Bolero Reefer

1994 WL 177785 (S.D. N.Y. 1994).

Chiquita is the plaintiff. International Reef is a defendant requesting the opportunity to depose an expert witness of Chiquita.


Is the expert protected from discovery?


According to Rule 26(b)(4)(B) Expert testimony from a expert not expected to testify at trial is only discoverable if there are exceptional circumstances.


The expert is not allowed to be deposed. However, his file can be discoverable as long as the experts notes are removed.


Chiquita is suing International Reefer and the actual Reefer (M/V) for cargo loss. The reefer had mechanical issues with a crane that did not allow the boarding of several crates of produce and the crates that were boarded were severely damaged upon arrival. Chiquita employed an expert to examine why the crane had malfunctioned but the expert was not intended to testify at trial.

International Reefer is wishing to depose this expert. They claim that because he was an employee of Chiquita, his report was simply a work report not related to the litigation and could be discoverable (fact witness). If this failed, International Reefer argues that this provides an exceptional circumstance because the opportunity has now passed for the Reefer to hire a witness to provide a report.


Although the employee conducted the information in his employment he falls into the category of an expert who is not expected to testify at trial and his work was conducted in preparation for litigation. Consequently, he is protected.

Additionally, this is not an exceptional circumstance because International Reef had the opportunity, but failed to timely take the opportunity to conduct their own investigation. The court is unwilling to reward untimely behavior.

Additional Notes

This case outlines what happens when an expert witness becomes a fact expert witness. This occurs when the expert witness discovers something “new” that was not previously known (because the expert now has some personal knowledge relating to the facts of the case).

The issue here is that the plaintiff hired a marine engineer to discover what happened (during discovery). Here, the plaintiff is arguing that the engineer’s work product is not discoverable because he is a non testifying expert witness. However, the defendant wants the document because they say that the engineer is a fact witness. So a big part of this discovery request is whether the expert witness is also a fact witness.

Here, the court determined that he was a non testifying expert witness and the material is not discoverable. As such, his report is only discoverable if there were exceptional circumstances. Here, there was no exceptional circumstances because the Reefer had the same, and often times exclusive, access to the reefer.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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