Commercial Litigation and Arbitration

Experts — Compelling Testimony from Unretained Experts — Five Factors

In re World Trade Center Lower Manhattan Disaster Site Litig., 2015 U.S. Dist. LEXIS 5045 (S.D.N.Y. Jan. 15, 2015):

A. Power of Court to Compel Non-Retained Expert Witnesses

Whether to compel a non-retained expert witness to produce documents [*109]  or testify at a deposition is within the sound discretion of the District Court. See Fed. R. Civ. P. 45(d)(3)(C). A Court may do so upon a showing of a "substantial need for the testimony or material that cannot be otherwise met without undue hardship" and assurance "that the subpoenaed person will be reasonably compensated." Id.; see also Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972) ("The weight of authority holds that, although it is not the usual practice, a court does have the power to subpoena an expert witness and ... require him [or her] to state whatever opinions he [or she] may have previously formed."). Courts generally consider the following five factors in determining whether to exercise such discretion:

   (1) "[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"; (2) "the difference between testifying to a previously formed or expressed opinion and forming a new one"; (3) "the possibility that, for other reasons, the witness is a unique expert"; (4) "the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify"; and (5) "the degree to which the witness is able to show that he has been oppressed [*110]  by having continually to testify[.]"

Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976).

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