Post Process

Everything to do with E-discovery & ESI

Case Blurb: Ahner; Fact that Producing Party is Testifying Witness Magnifies Need for Disclosure During Discovery

Posted by rjbiii on October 17, 2008

[Producing Party] argues…Rule 26(b)(4) precludes the [Requesting Party] from seeking information from it by subpoena because it is [Plaintiff’s] retained expert and its former employee, Nickie G. Cammarata, has been listed as an expert trial witness by [Plaintiff]. On the contrary, [Producing Party’s] status as a party’s testifying expert makes it more important, not less, that the facts and documents underlying its opinions be disclosed in response to a valid discovery request.

Indeed, Rule 26(a)(2) provides that parties must initially disclose, without awaiting a discovery request, the identity of any expert witness, “the data or other information considered by the witness in forming the opinions; [and] any exhibits to be used as a summary of or support for the opinions.” Although this court’s scheduling order altered the deadline imposed by the Federal Rules by which parties must provide their expert reports, underlying data and exhibits, neither that order nor Rule 26(b)(4) precludes the [Requesting Party] from propounding a subpoena duces tecum that seeks such underlying information as already exists. Rule 26(b)(4) only restricts when a party may depose its opponent’s testifying and non-testifying experts or propound interrogatories to its opponent’s non-testifying experts; it does not limit document requests.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *3 (E.D.La. Aug. 29, 2007) (internal citations removed)

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