There Is No Federal Privilege Against Being Called as Unretained Expert for a Party — Rule 45 Factors — Party Cannot Disqualify Adversary’s Counsel by Subpoenaing Him as Expert

From Aragon v. San Jose Ditch Ass’n, 2011 U.S. Dist. LEXIS 127243 (D. N.M. Oct. 3, 2011):

Although unretained experts have no privilege to refuse to be a witness for a party,

Footnote 4 Rule 706(a) of the Federal Rules of Evidence states: "An expert witness shall not be appointed by the court unless the witness consents to act."

the Court may consider several factors to determine whether to excuse an unretained expert from testifying. Rule 501 of the Federal Rules of Evidence states the general rule for privileges***.

Fed. R. Evid. 501. "[T]here is no constitutional or statutory privilege against the compulsion of expert testimony, and we perceive no sufficient basis in principle or precedent for holding that the common law recognizes any general privilege to withhold his expert knowledge." Kaufman v. Edelstein, 539 F.2d 811, 820 (2d Cir. 1976). See Ager v. Jane C. Stomont Hosp. and Training Sch. for Nurses, 622 F.2d 496, 503 n.6 (10th Cir. 1980)(citing Kaufman v. Edelstein, but not deciding the propriety of attempting to compel testimony from an expert retained by an adverse party whom the adverse party does not intend to call; holding that the identity, and other collateral information, concerning an expert who is consulted, but not expected to testify is not discoverable). But see Glenn v. Plante, 269 Wis.2d 575, 589, 676 N.W.2d 413, 420 (2004) (concluding that Wisconsin statute, stating that the court may not appoint an expert witness unless the expert witness consents to act, implicitly provides that an expert witness has the privilege to refuse to testify if he or she is called by a litigant). ***

[In contrast, see] Graham v. Gielchinsky, 126 N.J. 361, 368-371, 599 A.2d 149, 153-155 (1991)... (holding that, in the absence of exceptional circumstances, courts should not allow opinion testimony of an expert who was originally consulted by the opposing party).

New Mexico state law also does not provide a privilege against the compulsion of expert testimony. ***

Despite the lack of a privilege to refuse to be a witness, courts will not always require unretained experts to testify. Rule 45 of the Federal Rules of Civil Procedure provides that, to protect a person subjected to a subpoena, the Court may quash or modify the subpoena if it requires "disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party." Fed. R. Civ. P. 45(c)(3)(B)(ii). "Clause (c)(3)(B)(ii) provides appropriate protection for the intellectual property of the non-party witness." Fed. R. Civ. P. 45 advisory committee's note (1991 Amendment). The advisory committee explains the need for clause (c)(3)(B)(ii) stating:

A growing problem has been the use of subpoenas to compel the giving of evidence and information by unretained experts. Experts are not exempt from the duty to give evidence, even if they cannot be compelled to prepare themselves to give effective testimony, but compulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the value of their services. Arguably the compulsion to testify can be regarded as a "taking" of intellectual property. The rule establishes the right of such persons to withhold their expertise, at least unless the party seeking it makes the kind of showing required for a conditional denial of a motion to quash as provided in the final sentence of subparagraph (c)(3)(B); that requirement is the same as that necessary to secure work product under Rule 26(b)(3).

Fed. R. Civ. P. 45 advisory committee's note (1991 Amendment) (citations omitted). When deciding whether to excuse an unretained expert from testifying, the court may consider the following factors:

[T]he degree to which the expert is being called because of his knowledge of facts relevant to the case rather than in order to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; the possibility that, for other reasons, the witness is a unique expert; the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify; the degree to which the witness is able to show that he has been oppressed by having continually to testify; and, undoubtedly, many others.

Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976). See Chavez ex rel. Chavez v. Bd. of Educ. of Tularosa Mun. Sch., No. 05-380, 2007 WL 1306734, at * 4 (D.N.M., 2007)(Browning, J.)(quoting Kaufman v. Edelstein for factors that "should inform a court's decision whether to use its discretion to allow testimony to be compelled from an un-retained witness," and granting a motion to quash a deposition notice after noting that party seeking to depose expert has not shown that putative expert witness is a unique witness or that it is unlikely that any comparable witness will willingly testify).

ANALYSIS

A. and M. Aragon argue that the Court should disqualify Mr. White as co-counsel for the Defendants because he is a necessary factual and expert witness. The Defendants contend that Mr. White is not a necessary witness, because they are willing to stipulate to the facts and legal conclusions that Plaintiffs reference in their motion. The Court concludes that Mr. White is not a necessary fact or expert witness, and will not disqualify him as co-counsel for the Defendants.

In the end, Mr. White is a lawyer who has practiced water law in New Mexico for many years. He has an expertise. He is largely free to sell or give away that expertise, either as a lawyer or as an expert witness, to whomever he wants. Here, A. and M. Aragon do not want to pay for Mr. White's expertise; the Defendants are apparently willing to pay Mr. White to be their lawyer. A. and M. Aragon cannot properly keep him from his work and trade by designating, and ultimately subpoenaing him, as an unpaid expert witness in their case. This case does not involve a situation, similar to that in Kaufman v. Edelstein, where Mr. White is the only current water law expert available. As good as Mr. White may be, there are other water rights lawyers and experts in New Mexico. As such, he should be able to practice law without fear of being designated as an unpaid expert by the other side.

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