Commercial Litigation and Arbitration

Consulting Expert Retained by Client Prior to Anticipation of Litigation Not Immune from Discovery — Rule 26(b)(4)(D) Inapplicable

Quality Time, Inc. v. West Bend Mutual Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012):

Rule 26(b)(4)(B) states that "Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded." The rule does not otherwise protect expert reports or disclosures from discovery. As mentioned in a prior footnote, the only known potentially responsive documents to Request 13 are from Paul Carney, a non-disclosed consulting fire investigator who Defendant does not intend to use as an expert in this case. Because Defendant does not intend to use Mr. Carney at trial, Rule 26(a)(2) does not require any report or disclosure regarding him, and Rule 26(b)(4)(B) provides no basis to avoid discovery.

Similarly, Rule 26(b)(4)(D) is inapplicable on the facts before the Court. This rule generally prohibits discovery of facts known and opinions held by experts retained or specially employed in anticipation of litigation or for trial preparation. Although there appears to be no dispute that Defendant retained or specially employed Mr. Carney to investigate the roof collapse, Defendant has not shown that his retention or employment was in anticipation of litigation or for trial preparation. To the contrary, Defendant retained his services on July 21, 2011,101 well before Defendant reasonably anticipated litigation. Because Defendant did not retain or specially employ Mr. Carney in anticipation of litigation or for trial preparation, Rule 26(b)(4)(D) does not limit discovery that Plaintiffs can obtain concerning his opinions or facts known by him.

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