Discovery of Non-Testifying ‘In-House’ Experts Under Federal Rule of Civil Procedure 26

Abstract

Rule 26(b)(4) of the Federal Rules of Civil Procedure limits the discovery of facts known or opinions held by “experts” where those facts and opinions were “acquired or developed in anticipation of litigation or for trial.” The rule purports to set forth the nature of these limitations with respect to experts who will testify at trial and “retained or specially employed experts” who will not testify. However, a person seeking to discern the limitations on discovery of a third category of experts, non-testifying experts who are regularly employed by a party and acquire and develop facts and opinions in anticipation of litigation, faces a significant amount of fog. The issue of what, if any, limitations apply to discovery of these “in-house” experts is not addressed plainly by the rule, and the advisory committee note only enhances the uncertainty. This article focuses on the appropriate bearings, which can be extracted from the policies underlying discovery and its limitations. After noting the context in which the issue arises and illustrating how rule 26(b)(4) fails to delineate clearly the appropriate limitations on discovery of in-house experts, the article extracts the policies pertinent to its resolution that emanate from the Rules. The article then explores comprehensively how these policies apply to the in-house expert context and suggests the resolution of the issue that is most consistent with them.

Keywords: Rule 26(b)(4), Federal Rules of Civil Procedure, Non-Testifying Experts, In-House Experts