Martensen v. Koch, 2014 U.S. Dist. LEXIS 103165 (D. Colo. July 29, 2014):

By its very terms, Rule 26(b)(4)(D) states that a party may not "discover facts known or opinions held" by a non-testifying expert,  but is silent on whether the "identity" of the non-testifying expert is also outside the bounds of discovery. The Tenth Circuit has held that the identity of a specially retained expert who is not expected to testify at trial is not discoverable "except as provided in Rule 35(b) or upon a showing of exceptional circumstances." Ager, 622 F.2d at 503 [Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496, 503 (10th Cir. 1980)] (internal quotation and citation omitted). But see In re Welding Fumes Products Liability Litigation, 534 F. Supp.2d 761, 767-68 (N.D. Ohio 2008) (chronicling the split in circuit authority regarding the scope of protection offered in Rule 26(b)(4)(D)). Plaintiff's motion to compel does not make any showing of exceptional circumstances, or provide any persuasive rationale for departing from the Tenth Circuit's decision in Ager. To the extent that Defendant Koch is required to produce relevant portions of the Grant Thornton reports, I will also require disclosure of the "consultants" who authored those particular materials. In all other respects, I deny Plaintiff's request for the identity of "consultants" cited on Defendant's privilege log.

In re Welding Fume Prods. Liab. Litig., 534 F. Supp. 2d 761 (N.D. Ohio 2008):

***Specifically, defendants assert that the identity of certain consulting, non-testifying expert witnesses is protected from disclosure by Fed. R. Civ. P. 26(b)(4)(B), which  [**33] states:

   A party may . . . discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Notably, this rule explicitly protects from disclosure only "facts known or opinions held by" consulting, non-testifying experts, and not simple disclosure of their identities. There is case law standing for the proposition, however, that Rule 26(b)(4)(B) does extend further, so that "the identity, and other collateral information concerning an expert who is retained or specially employed in anticipation of litigation, but not expected to be called as a witness at trial, is [also] not discoverable except as 'provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.'" Ager v. Stormont, 622 F.2d 496, 503 (10th Cir. 1980)  [**34] (quoting Rule 26(b)(4)(B)). Defendants insist that the Ager rule should apply in this case, and also that the plaintiffs are unable to show any "exceptional circumstances" justifying disclosure.

Although some cases characterize Ager as setting out "the predominant view,"⁶ it is clear that there is a split in authority. Many cases simply reject the ruling and reasoning set out in Ager and instead cite Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976), which "conclude[d] that the names and addresses, and other identifying information, of experts, who have been retained or specially employed in anticipation of litigation or preparation for trial and who are not expected to be called as witnesses at trial, may be obtained through properly framed interrogatories without any special showing of exceptional circumstances in the absence of some indication that such information by reason of facts peculiar to the case at issue, is irrelevant, privileged, or for some other reason should not be disclosed." Id. at 182. Indeed, of the four district court opinions from the Fifth Circuit that address the issue of whether the identities of consulting, non-testifying experts may be discovered, two cases followed the rule set out in Baki and allowed discovery, two cases followed the rule in Ager, and one of these latter cases found that exceptional circumstances justified discovery of the identity of some of the experts.⁷ Cases from other circuits also yield similar results — some find Baki persuasive,  [*768]  some find Ager persuasive, and some find that exceptional circumstances justify discovery regardless of which standard is used.⁸ The most recent case this Court could find addressing the issue sided with Baki.⁹

6   Cooper v. Paul Revere Life Ins. Co., 1997 U.S. Dist. LEXIS 7559, 1997 WL 289706 at *1 (E.D. La. May 28, 1997).

7   See Cooper v. Paul Revere Life Ins. Co., 1997 U.S. Dist. LEXIS 7559, 1997 WL 289706 at *1 (E.D. La. May 28, 1997) (adopting Ager); Threlkeld v. Haskins Law Firm, 1990 U.S. Dist. LEXIS 11075, 1990 WL 124876 at *1 (E.D. La. Aug. 21, 1990) (summarily rejecting Ager); Jesclard v. Babcock & Wilcox, 1990 U.S. Dist. LEXIS 10326, 1990 WL 124297 at *1 (E.D. La. Aug. 9, 1990) (finding Baki persuasive and noting that "the only reason either side could have for objecting to such a simple discovery obligation is a desire to thwart the full and candid discovery contemplated by the Federal Rules of Civil Procedure as delineated in Hickman v. Taylor"); In re: Sinking of Barge "Ranger I" Casualty near Galveston, Texas, 92 F.R.D. 486, 488 (S.D. Texas 1981)  [**36] (an MDL Court examined the reasoning set out in Baki and Ager and stated it was "in substantial agreement with" Ager, but went on to order disclosure of the identities of two consulting witnesses; also citing several older cases not listed in this opinion).

8   This Court's review of the case law seems to show that, if anything, it is the rule announced in Baki, not Ager, that seems to predominate. See Convolve, Inc. v. Compaq Computer Corp., 2004 U.S. Dist. LEXIS 17502, 2004 WL 1944834 at *1 (S.D.N.Y. Sept. 1, 2004) (citing cases and agreeing with the Baki rule that "the identity of nontestifying experts is not exempt from disclosure"); Biovail Corp. Int'l v. Hoechst Aktiengesellschaft, 1999 U.S. Dist. LEXIS 21621, 1999 WL 33454801 at *7-8 (D. N.J. Nov. 12, 1999) (discussing and citing cases on both sides of the issue and finding (1) the Baki rule was better reasoned, and (2) in the alternative, exceptional circumstances justified disclosure); Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 145 (S.D.N.Y. 1997) (following Ager and further finding that exceptional circumstances justified disclosure); Queen's University at Kingston v. Kinedyne Corp., 161 F.R.D. 443, 446 (D. Kan. 1995)  [**37] (following Ager and finding no exceptional circumstances to justify disclosure); MacGillivray v. Consolidated Rail Corp., 1992 U.S. Dist. LEXIS 3244, 1992 WL 57915 at *3 (E.D. Pa. Mar. 17, 1992) (following the Baki rule); Cox v. Piper, Jaffray & Hopwood, 848 F.2d 842, 845 (8th Cir. 1988) (Beam, J., dissenting) (disagreeing that appellate jurisdiction did not exist and agreeing with Ager); Butler v. Harrah's Marina Hotel Casino, 1987 U.S. Dist. LEXIS 8256, 1987 WL 16691 at *2 (E.D. Pa. Sept. 8, 1987) (acknowledging the split in authority and agreeing with Baki);Bove v. Worlco Data Sys., Inc., 1987 U.S. Dist. LEXIS 422, 1987 WL 5715, at *2-3 (E. D. Pa. Jan. 21, 1987) (discussing Ager and Baki and agreeing with the former); In re Pizza Time Theatre Sec. Litig., 113 F.R.D. 94, 97-98 (N.D. Cal. 1986) (noting Baki but agreeing with Ager); In re: Folding Carton Antitrust Litig., 83 F.R.D. 256, 259 (N.D. Ill. 1979) (acknowledging contrary authority, but following Baki); ARCO Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D. Pa. 1978) (acknowledging contrary authority, but following Baki).

9   See Eisai Co. Ltd. v. Teva Pharmaceuticals USA, Inc., 247 F.R.D. 440, 2007 U.S. Dist. LEXIS 94826, 2007 WL 4443872 at *2 (D. N.J. Dec. 3, 2007) (comparing Ager and Baki and finding the reasoning of the latter more persuasive).  [**38] See generally Douglas Emerick, Note, Discovery of the Nontestifying Expert Witness' Identity under the Federal Rules of Civil Procedure: You Can't Tell the Players Without a Program, 37 Hastings L. J. 201 (Sept. 1985) (arguing that the Federal Rules of Civil Procedure should be amended to follow Baki).

Ultimately, the Court need not decide whether the rule set out in Baki or in Ager should control in this case, though it finds the rationale of the former to have greater general appeal.