Opinion
0
January 1, 1988
EXPERT DISCOVERY IN THE EIGHTH CIRCUIT: AN EMPIRICAL STUDY by DAVID S. DAY I. INTRODUCTION
© 1988 David S. Day
Professor of Law, University of South Dakota School of Law. B.A., University of Iowa, 1970; J.D., University of Iowa College of Law, 1977.
The H. Lauren Lewis Fund of the University of South Dakota Law School Foundation provided financial assistance with certain of the costs associated with the preparation of this article. I want to thank Chief Judge Donald Porter of the District for South Dakota for suggesting that I undertake this study, William Clayton, Clerk of the District Court, for his advice on identifying the research population of attorneys and Mr. David Holmes of the University of South Dakota's Computer Center for his valuable assistance with the compilation of the Study's data. I appreciate the research assistance and review of early drafts provided by Craig Davis, Esq., David Vis and Sheila McDonald. Steven Eggimann, Esq., provided valuable insights which improved the questionnaire. The conclusions reached herein are the sole responsibility of the author.
The discovery of expert witnesses is governed, on the federal level, by Rule 26(b)(4) of the Federal Rules of Civil Procedure. Despite the importance of expert discovery to modern litigation, there has been relatively little scholarly examination of the subject. Moreover, only a few studies have sought to use empirical data to examine the operation of Rule 26(b)(4) in practice. The use of empirical studies can develop potentially valuable information. For example, the seminal empirical study of expert discovery by Professor Michael Graham suggested that the actual discovery practices of lawyers diverge — in significant ways — from both the substantive standards and the procedural limitations established by the text of Rule 26(b)(4).
Fed.R.Civ.Pro. 26(b)(4). In their full text Rules 26(b)(4)(A) and (B) state:
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.
(B) 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.
Hereinafter, these provisions will be referred to as "Rule ___" or "subdivision ___"
The earliest empirical study of expert discovery under Rule 26(b)(4) was conducted by Professor Michael Graham. See Graham, Discovery of Experts under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part two, An Empirical Study and A Proposal, 1977 U.Ill.L.F. 169 [hereinafter cited as Graham, Part Two]. Other empirical studies were performed by the author of this article. See Day, Expert Discovery Under Federal Rule 26(b)(4): An Empirical Study in South Dakota, 31 S.D. L. Rev. 40 (1985) [hereinafter cited as Day, South Dakota Attorneys' Study]. The South Dakota Attorney's Study had a companion study. See Day and Dixon, A Judicial Perspective on Expert Discovery Under Federal Rule 26(b)(4): An Empirical Study of Trial Court Judges and a Proposed Amendment, 20 J.Marshall L. Rev. 377 (1987) [hereinafter cited as Day and Dixon].
See generally Teitelbaum, "An Overview of Law and Social Research," 35 J.Legal Educ. 465, 468 (1985); Brilmayer and Kornhauser, "Review: Quantitative Methods and Legal Decisions," 46 U.Chi. L. Rev. 116, 123 (1978); W. Glaser, Pretrial Discovery and the Adversary System 207 (1968).
Graham, Part Two, supra note 2, at 200. The use of data from state jurisdictions is a potentially valuable source of information about expert discovery. See Graham, Part One, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U.Ill.L.F. 895, 931 n. 137 [hereinafter cited as Graham, Part One].
This article is a preliminary report on the findings from a study of active practitioners in the ten federal District Courts within the Eighth Circuit Court of Appeals. Following a description of the Study and an analysis of the text of Rule 26(b)(4), the results of the Study will be presented. In addition, this article will suggest some observations about the degree of substantive and procedural divergence reported by the Eighth Circuit practitioners.
See infra text accompanying notes 12 to 31.
See infra text accompanying notes 32 to 65.
See infra text accompanying notes 111 to 159.
See, e.g., infra text accompanying notes 131 to 135.
II. THE STRUCTURE OF RULE 26(b)(4)
Rule 26(b)(4) is the governing section, in the federal system, regarding the pretrial discovery of expert witnesses. The common feature of all experts covered by Rule 26(b)(4) is that the experts have been retained by one of the parties. Discovery of such retained experts is governed by subdivisions (A) and (B) of the Rule. Subdivision (A) is directed at testimonial experts; subdivision (B) controls discovery of nonwitness experts. The degree of discovery permitted by the Rule is a function of two principal factors: (1) the need for an adversary to prepare for effective cross examination and rebuttal at time of trial; and (2) considerations erations growing out of the "fairness principle."A. Testimonial Experts
A party may retain an expert, under Rule 26(b)(4)(A), as a testimonial expert. The primary feature of the text of Rule 26(b)(4)(A) mandates a "two-step" discovery procedure. Apart from this procedural limitation, testimonial experts are essentially subject to full discovery, limited only by principles of relevance. Since full discovery is generally regarded as necessary for the preparation of effective cross examination and rebuttal at trial, testimonial experts are subject to discovery regarding all the facts they have learned since they were retained, all opinions they have generated since they were retained and all the materials they reviewed and relied upon in developing their facts or opinions.1. Interrogatory Discovery of Experts: Rule 26(b)(4)(A)(i)
The first step, under the text of Rule 26(b)(4)(A)(i), is for a party to serve "expert" interrogatories on an adversary. These interrogatories are limited to three basic types of information: the "identity" of the testimonial expert, the "subject matter" of the expert's proposed testimony and the "substance" of the testimonial expert's opinions.2. "Further Discovery": Rule 26(b)(4)(A)(ii)
The second discovery stage for testimonial experts, according to the text of the Rule, requires that "[u]pon motion, the court may order further discovery by other means." The text of Rule 26(b)(4)(A)(ii) is substantively ambiguous; it procedurally requires that noninterrogatory discovery can be undertaken only if the court grants a motion approving it. In this respect, Rule 26(b)(4)(A) deviates from the basic "extrajudicial" approach of the federal discovery rules.B. Nonwitness Experts
Under Rule 26(b)(4)(B), a party may retain an expert as a nonwitness expert. By definition, the nonwitness expert will not testify at the trial. An expert retained under Rule 26(b)(4)(B) is given a greater degree of protection against discovery than a testimonial expert. It appears that this greater degree of protection is a function of the "consultive" role played by nonwitness experts.Under subdivision (B), the court may order discovery of a nonwitness expert only when the discovering party can demonstrate the existence of "exceptional circumstances." The level of protection provided by the exceptional circumstances standard for nonwitness expert discovery would seem to be premised on the fact that, in contrast to the testimonial expert, there is normally no need for an adversary to prepare to cross-examine a nonwitness expert at trial.
Fed.R.Civ.P. 26(b)(4)(B). See Marine Petroleum Company v. Champlin Petroleum Company, 641 F.2d 984, 990 (D.C. Cir. 1980); United States v. Hooker Chemicals Plastics Corp., 112 F.R.D. 333, 338 (W.D.N.Y. 1986); Hoffman v. Owens-Illinois Glass Co., 107 F.R.D. 793, 794-95 (D.Mass. 1985).
See Barnes v. City of Parkersburg, 100 F.R.D. 768, 770 (S.D.W.Va. 1984); Mantolete v. Bolger, 96 F.R.D. 179, 181 (D.Ariz. 1982).
1. The Substance of the "Exceptional Circumstances" Standard
Although Rule 26(b)(4)(B) mandates the exceptional circumstances standard, relatively little has been written or decided about the substance of the standard. In general, the court may order discovery under the exceptional circumstances standard only when such discovery is necessary for a discoverying party's trial preparation, and when the discoverying party has no other source of the information.On the face of subdivision (B), the substance of the exceptional circumstances standard is ambiguous. The text only indicates that exceptional circumstances exist when it is "impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Neither the Rule itself, nor the Advisory Committee Notes, give any examples of such "impracticabilities."
See Day, The Ordinary Witness Doctrine: Discovery of the Pre-retention Knowledge of a Nonwitness Expert Under Federal Rule 26(b)(4)(B), 38 Ark. L. Rev. 763, 773-75 (1985).
The courts and commentators, however, have provided some guidance as to the substance of the "impracticabilities" standard. They have commonly identified two situations which give rise to exceptional circumstances. The first situation is "changed circumstances" where it is impossible for the discovering party to obtain or replicate expert discovery on the contested issue. In the second commonly identified situation constituting "impracticability," the replication of the contested item or material is physically feasible, but the costs would be socially and judicially prohibitive. Outside of these situations, it appears that the full substance of the exceptional circumstances standard has yet to be examined.
See In Re "Agent Orange" Product Liability Litigation, 105 F.R.D. 557, 581 (E.D.N.Y. 1985); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 299 (E.D.Pa. 1980); Maurer, supra note 11, at 91 n. 74; Note, Gimme Shelter? Not If you Are a Non-witness Expert Under Rule 26(b)(4)(B), 56 Cin. L. Rev. 1027, 1041-47 (1988).
See Dixon v. Cappellini, 88 F.R.D. 1, 3 (M.D.Pa. 1980).
See Pearl Brewing Company v. Joseph Schlitz Brewing Company, 415 F.Supp. 1122, 1138-39 (S.D.Tex. 1976); 4 J. Moore, J. Lucas G. Grotheer, Jr., Moore's Federal Practice, § 26.66[4] (2d ed. 1984); Note, supra note 31, at 1041-43.
2. The Scope of the Exceptional Circumstances Standard
Apart from the substance of subdivision (B)'s exceptional circumstances standard, there are questions as to the scope of this provision. The leading decision, Pearl Brewing Co. v. Joseph Schlitz Brewing Co., has identified some of the parameters of the scope of this provision. The case law suggests that, at a minimum, the exceptional circumstances standard is not an absolute degree of protection for nonwitness experts. Rule 26(b)(4)(B) provides only a qualified immunity against discovery of nonwitness experts.
415 F.Supp. 1122, 1138-39 (S.D.Tex. 1976).
See In Re "Agent Orange" Product Liability Litigation, 105 F.R.D. 577, 581 (E.D.N.Y. 1985).
See Pearl Brewing, 415 F.Supp. at 1138-39.
See Marine Petroleum Company v. Champlin Petroleum Company, 641 F.2d 984, 990 (D.C. Cir. 1980). See generally 8 C. Wright A. Miller, Federal Practice and Procedure, § 2332 (1970) [hereinafter cited as Wright Miller].
C. Discovery of the Identity of a Nonwitness Expert
At least among the commentators, one of the currently debated issues in the area of expert discovery is the ability of a party to discover the "identity" of an adversary's nonwitness expert. The underlying concern in the debate is that discovery of a nonwitness expert's identity may lead to substantive discovery and, thereby, undercut the protection afforded by the exceptional circumstances standard.
See Comment, Discovery of the Nonwitness Expert Under Federal Rule of Civil Procedure 26(b)(4)(B), 67 Iowa L. Rev. 349, 351-52 (1982); Note, Discovery of Retained Nontestifying Experts' Identities Under the Federal Rules of Civil Procedure, 80 Mich. L. Rev. 513 (1982); Note, Civil Procedure — Ager v. Jane C. Stormont Hospital: Discovery of a Nontestifying Expert, 60 N.C. L. Rev. 695 (1982).
The decisions have been largely split on the discoverability of the nonwitness expert's identity, although the federal Court of Appeals for the Tenth Circuit recently produced an appellate opinion on the issue. In Ager v. Jane C. Stormont Hospital Training School for Nurses, the court held that the discovery of the identity of nonwitness experts, like discovery of the nonwitness in general, must be premised on a showing of exceptional circumstances. Although there is no Eighth Circuit decision squarely addressing this issue, a District Court in the Eighth Circuit has adopted the exceptional circumstances test for discovery of the identities of nonwitness experts. In the absence of controlling authority, the Eighth Circuit Study sought to determine how discovery of such identities was being conducted.
Ager v. Jane C. Stormont Hosp. Training School for Nurses, 622 F.2d 496 (10th Cir. 1980). Compare Baki v. B.F. Diamond Construction Company, 71 F.R.D. 179 (D.Md. 1976) (using the relevance standard of Rule 26(b)(1)).
622 F.2d 496 (10th Cir. 1980).
Id. at 503. The Ager decision seems to be consistent with the policies underlying Rule 26(b)(4)(B). See Cox v. Piper, Jaffrey Hopwood, Inc., 848 F.2d 842, 845 (8th Cir. 1988) (Beam, J., dissenting in part).
See Kuster v. Harner, 109 F.R.D. 372, 375 (D.Minn. 1986). See also Note, "Kuster v. Harner: A New Interpretation of Federal Rule of Civil Procedure 26(b)(4)(B)," 33 S.D. L. Rev. 352, 355 (1988).
Within the Eighth Circuit, the split of authority has been recognized by the North Dakota Supreme Court in a case posing the issue under a state rule which is modeled after Rule 26(b)(4). See Weisenberger v. Senger, 381 N.W.2d 187, 190 (N.D. 1986). The Senger court resolved the issue without deciding whether to follow Ager. See id. (avoiding the issue by construing expert interrogatories narrowly).
D. Discovery of Medical Experts
E. Discovery of Informally Consulted Experts
See infra Appendix A, question 20.
Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 504 (1970) [hereinafter cited as Advisory Committee Notes].
See Ager, 622 F.2d at 502; Healy v. Counts, 100 F.R.D. 493, 496 (D.Col. 1984).
See 8 Wright Miller, § 2029 at 250-51; Graham, Part One, supra note 4, at 940 n. 182; Note, "Healy v. Counts: Discovering Informally Consulted Experts Under Federal Rule of Civil Procedure 26(b)(4)(B)," 33 S.D. L. Rev. 340, 344 (1988).
Informally consulted experts are not "retained" for purposes of Rule 26(b)(4). Such "advisory" experts are used by lawyers as consultants, often as a "sounding board." Based on the Advisory Committee Notes, the courts addressing the issue of discovery of such experts have provided a complete immunity from discovery.
They may not be retained, after an initial consultation, because their expert opinion is considered unsatisfactory by the retaining counsel. See id. In addition to an unsatisfactory opinion, the retaining counsel may believe other problems preclude retention. See Graham, Part One, supra note 4 at 940 n. 182.
See Healy v. Counts, 100 F.R.D. 493, 494 (D.Col. 1984).
See id.
See Ager, 622 F.2d at 502; Healy v. Counts, 100 F.R.D. 493, 496 (D.Col. 1984).
The Eighth Circuit Study sought to examine the practitioners' use of informally consulted experts. The Study also attempted to determine what substantive standard — if any — was employed regarding the discovery of such "advisory" experts. Especially in light of the complete immunity standard employed in the case law, the potential for some divergence seemed probable.
See Appendix A, Question 6.
See Appendix A, Questions 35 and 36.
III. AN OVERVIEW OF RULE 26(b)(4): THE INDEPENDENT PREPARATION POLICY
A fundamental policy of the Rules of Civil Procedure is the promotion of adequate trial preparation. This is, however, not the only policy consideration. Another central, and sometimes competing, consideration underlying Rule 26(b)(4) is that each party must independently secure and prepare its own expert testimony. In this regard, Rule 26(b)(4) is premised on the idea that diligence will be rewarded and "freeriding" will be discouraged.
Tahoe Insurance Co. v. The Morrison-Knudsen Co., 84 F.R.D. 362, 363 (D.Idaho 1979). See Alvarez v. Wallace, 107 F.R.D. 658, 659 (W.D.Tex. 1985); Weiss v. Chrysler Motors Corp., 515 F.2d 449, 456-57 (2d Cir. 1975); Advisory Committee Notes, 48 F.R.D. at 503-04 ("A party must as a practical matter prepare his own case. . . . for he can hardly hope to build his case out of his opponent's experts."). Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 503-04 (1970) [hereinafter cited as Advisory Committee Notes]. See also Fed.R.Civ.P. 1 ("They shall be construed to secure the just, speedy, and inexpensive determination of every action.").
See Pielemeier, Discovery of Non-Testifying "In House" Experts under Federal Rule of Civil Procedure 26, 58 Ind.L.J. 597, 608-11 (1983); Day, supra note 29, at 791. See also Granger v. Wisner, 138 Ariz. 377, 656 P.2d 1238, 1342 (1982) (construing Arizona Rule Civ.Proc. 26(b)(4)(B)).
Long, Discovery and Experts Under the Federal Rules of Civil Procedure, 38 F.R.D. Ill, 123 (1966). Although the Rule is designed to encourage independent preparation, attempts to "freeride" on an opponent's expert are common. See Hely, "Opponent's Experts Can Work for You, Trial 64, 65 (Sept. 1985) (". . . plaintiffs' attorneys can make their case through the other side's expert by creative use of the Rules of Evidence.").
From a policy perspective, both the substantive standards and the procedural constraints established by Rule 26(b)(4) can be seen as methods to control the scope of expert discovery. For purposes of evaluating the effectiveness of the Rule, these various control mechanisms must be examined.
See Graham, Part One, supra note 4, at 899.
A. Control of the Substantive Scope of Expert Discovery
In historical perspective, it is important to note that, prior to the 1970 adoption of the Rule, many courts imposed substantive limitations based on the attorney-client privilege or the work-product doctrine. One of the major issues debated, both by the courts and the commentators, was the propriety of any limitation on the substantive scope of expert discovery. The Advisory Committee Notes and the history of the Rule's various drafts point to three major sources relied upon by the drafters in addressing the scope of discovery. These are the Knighton case and the articles by Professor Friedenthal and Mr. Long. Although, as Professor Graham demonstrated, these sources did not agree on the best approach to expert discovery, they did concur on the elimination of the attorney-client privilege or the work-product doctrine as substantive limitations on routine expert discovery. It is not frequently quently recognized, however, that the text of the Rule ended up eliminating virtually all substantive limitations.
See Advisory Committee Notes, 48 F.R. D. at 504-05; Graham, Part One, supra note 4, at 902.
See Long, supra note 57, at 112.
See Graham, Part One, supra note 4, at 900-08.
Knighton v. Villian Fassio, 39 F.R.D. 11 (D.Md. 1965).
See Friedenthal, supra note 24.
See Long, supra note 57.
See Graham, Part One, supra note 4, at 907.
Advisory Committee Notes, 48 F.R.D. at 504-05.
This approach was most significant regarding the scope of discovery of testimonial experts. Prior to the adoption of the Rule in 1970, a leading view regarding the scope of expert discovery was that an adversary's discovery would be limited to the "direct testimony" which an expert would offer as well as the factual basis for that direct testimony. The competing view was that there should be no such "direct testimony" limitation on the scope of discovery.
See Graham, Part One, supra note 4, at 914.
See id., at 906.
See Graham, Part One, supra note 4, at 906 n. 51; Long, supra note 68, at 112; Friedenthal, supra note 24, at 483-87.
The 1970 amendment rejected the direct testimony position. Rule 26(b)(4) does not place any substantive limitation on the scope of discovery other than the provision that discoverable facts and opinions must be prepared "in anticipation of litigation."
Fed.R.Civ.P. 26(b)(4)(A). See Bockweg v. Anderson, 117 F.R.D. 563, 564-65 (M.D. N.C. 1987); Graham, Part One, supra note 4, at 914.
Fed.R.Civ.P. 26(b)(4). This so-called limitation, found in the prefatory statement in Rule 26(b)(4), ultimately is not meaningful because, if Rule 26(b)(4) would not apply to the discovery, then the relevance standard of Rule 26(b)(1) applies. Since the relevance standard is extremely broad, the "in anticipation of litigation" standard does not constitute a meaningful substantive limitation on the scope of expert discovery.
B. The Procedural Constraint of Rule 26(b)(4)
Even though the text of Rule 26(b)(4)(A) does not have a substantive standard, the Rule embodies at least one procedural constraint. Subdivisions (A)(i) and (ii) set up the procedural limitation commonly called the "two-step approach." As Professor Graham has noted, Rule 26(b)(4) has adopted, in this regard, the approach from the Knighton case.
Fed.R.Civ.P. 26(b)(4)(A)(i) and (ii).
Id. See Graham, Part One, supra note 4, at 915.
See Graham, Part One, supra note 4, at 907, 911.
For present purposes, the important thing to recognize is that this two-step constraint has potential implications for the way attorneys will conduct expert discovery. The two-step procedural constraint requires that, as a necessary first step in any meaningful type of discovery of an adversary's expert, a party must serve certain kinds of interrogatories. A strict interpretation of Rule 26(b)(4)(A) would have profound consequences for expert discovery. The Eighth Circuit Study, along with the earlier studies, sought to determine whether these potential implications have occurred in practice.
Fed.R.Civ.P. 26(b)(4)(A)(i). See Graham, Part One, supra note 4, at 915-16.
Specifically, the Attorney's Study sought to determine whether attorneys were following the two-step procedure. See Day, South Dakota Attorneys' Study, supra note 2, at 58-59 (Questions 10a and b; Question 13).
C. Control Through Other Procedural Constraints
Apart from substantive limitations on the scope of discovery and the two-step mechanism, other potential limiting mechanisms could be used to control expert discovery. The various procedural limitations create a strong incentive for a party to prepare its own expert case at an early stage in the law suit. Since these incentives will discourage laziness, they would be consistent with the independent preparation policy underlying the Rule.
Although they are labeled in this article as "procedural," it should be recognized that the impact of these procedural constraints can have a profound "substantive" impact on the development of a party's case, especially if the party would have delayed its discovery until the trial date would be close.
See Graham, Part One, supra note 4, at 904; Friedenthal, supra note 24, at 487; Comment, The In-House Expert Witness: Discovery Under the Federal Rules of Civil Procedure, 33 S.D. L. Rev. 283, 285 (1988).
As of 1970, various ideas regarding procedural constraints were available to the drafters to provide the incentive for independent preparation. These will be discussed in order.
1. The Use of "Mutuality" as a Control Mechanism
In his influential pre-Rule article, Professor Friedenthal urged that expert discovery be governed largely by the use of a "mutuality" mechanism. Friedenthal urged that, in conjunction with the use of timing constraints, mutuality be the major feature of expert discovery. Friedenthal suggested that, at a "short time before trial," each party be required to engage in a mutual exchange of lists of expert witnesses. Long's article essentially agreed with the use of mutuality as a control device.
Friedenthal, supra note 24, at 488.
See id.
Id.
See Long, supra note 57, at 139. In contrast, the Knighton decision made no reference to mutuality. See Graham, Part One, supra note 4, at 908.
The Long/Friedenthal suggestion was not adopted by the Rule's drafters in 1970. There is nothing in the text of Rule 26(b)(4), or in any of the Advisory Committee Notes, which requires mutuality in expert discovery. A party's discovery of expert witnesses is not conditioned by the text of the Rule on the adversary's ability or willingness to conduct such discovery in any reciprocal fashion.
Fed.R.Civ.P. 26(b)(4); Advisory Committee Notes, 48 F.R.D. at 503.
See Fed.R.Civ.P. 26(d); Advisory Committee Notes, 48 F.R.D. at 506.
The use of mutuality would be, moreover, a direct contradiction to the general approach of the Rules of Civil Procedure. The Rules explicitly reject any type of prioritization and basically institute race/notice discovery procedures. Despite the historical and textual rejection of mutuality, the Eighth Circuit study sought to determine whether mutuality has become an element of expert discovery as it is actually practiced.
Fed.R.Civ.P. 26(d) ("Methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery."); Advisory Committee Notes, 48 F.R.D. at 506-07.
See infra Appendix A, question 15.
2. The Use of Timing Constraints
In addition to mutuality, Professor Friedenthal recognized that the use of procedural constraints on the timing of expert discovery can be a valuable control mechanism. Friedenthal argued that the time frame for expert discovery should be limited exclusively to the "short time" before trial. The rationale for such timing constraints is that, if each side were prohibited from undertaking discovery of their adversary's experts until a "short time" before trial, each party will be forced to prepare their own case independently prior to that time. No party would risk the chance that, a short time before trial, they would uncover significant deficiencies in their preparation.
Friedenthal, supra note 24, at 485-87 ("the timing of discovery is extremely important").
Id. Recent commentators, moreover, have continued to suggest that the regulation of the timing of expert discovery would be a salutory means of controlling expert discovery. See Note, Discovery of Attorney Work Product Reviewed By An Expert Witness, 85 Colum. L. Rev. 812, 834-35 (1985). Cf. Liggett Group Inc. v. Brown Williamson Tobacco Corp., 116 F.R.D. 205, 207 (M.D.N.C. 1986).
See Friedenthal, supra note 24, at 485. ("[An attorney] may need advice of his own experts to do so and indeed, in certain cases his experts may require time to make further inspections an analysis of their own."). An alternative, and somewhat complimentary, rationale can be premised on the idea that expert discovery is more manageable than "fact" discovery. Fact discovery, under this rationale, should precede expert discovery. See Liggett Group Inc. v. Brown Williamson Tobacco Corp., 116 F.R.D. 205, 207 (M.D.N.C. 1987). The Rule, of course, rejects this theory of expert discovery. See Fed.R.Civ.Pro. 26(d).
See Stacey v. Bangor Punta Corp., 107 F.R.D. 779, 780 (D.Md. 1985).
Despite its attractiveness, the Friedenthal proposal was not adopted during the 1970 amendments. Under Rule 26(b)(4), a party is not limited to any particular time frame in which to conduct the expert discovery. The lack of timing constraints, combined with the unlimited scope on expert discovery, would seem to suggest that the Rule expanded the scope of expert discovery far beyond the drafters' initial attempts in 1966. Outside of certain constraints on the plaintiff, discovery is a "race," and as a practical matter, it is subject to agreement among counsel.
Fed.R.Civ.P. 26(b)(4); Fed.R.Civ.P. 26(d). Some jurisdictions, namely California, have relied heavily on the use of timing as a control mechanism for expert discovery. See Cal.Civ.Proc. Code § 2034 (West 1987). Although the California Rules of Civil Procedure do not limit expert discovery exclusively to the last few months before trial as Friedenthal would have suggested, the California Rule on expert discovery does rely on timing. See id. The California Rule is analogous to an early discovery cutoff date. See Gallo v. Peninsula Hospital, 164 Cal.App.3d 899, 211 Cal.Rptr. 27 (1st Dist. 1985). Discovery cutoffs are common in many jurisdictions and especially in the federal district courts. See, e.g., Local Rule 9.4.8, Local Rules of the United States District Court for the Central District of California (1983); Rule 20, Local Rules of the United States District Court for the Eastern District of New York (1984) (special discovery cutoff date for expert discovery); Rule 33, Local Rules of the United States District Court for the Western District of Missouri (discovery cutoff for expert interrogatories).
Of course, Rule 26(d) specifically rejects the idea of priority. See Fed.R.Civ.P. 26(d); Advisory Committee Notes, 48 F.R. D. at 506. But see Local Rule 20 (E.D.N. Y.).
See Graham, Part One, supra note 4, at 912.
See Fed.R.Civ.P. 26(d); Day, South Dakota Attorneys' Study, supra note 2, at 48.
The Eighth Circuit Study sought to determine whether the practitioners perceive the use of a timing limitation, such as Friedenthal advocated, as a constraint on the scope of discovery under the Rule. The results are reported below.
See infra Appendix A, question 15.
IV. DESCRIPTION OF THE EIGHTH CIRCUIT STUDY
In Professor Graham's study of expert discovery, he examined both attorneys and judges in the context of litigation practice in the federal district courts. The Study herein attempted to build on the insights provided by the original study. This study used a smaller research population: only attorneys practicing in the ten federal district courts within the Court of Appeals for the Eighth Circuit were surveyed.
See Graham, Part Two, supra note 2, at 171. Only 9.23 percent of the judges responded to the Graham Study. Id. at n. 7.
See infra Appendix A. See also Day, South Dakota Attorneys' Study, supra note 2 at, 40-41. The Eighth Circuit Study was conducted approximately ten years after the Graham study. See Wilson, supra note 14 at 412-13 n. 3. See generally McKusick, State Courts' Interest In Federal Rulemaking: A Proposal For Recognition, 36 Me. L. Rev. 253, n. 2 (1984).
A. The Eighth Circuit Study Questionnaire
The primary tool for the Eighth Circuit Study was an anonymous, multipage questionnaire. The questionnaire had several parts. Part of the questionnaire examined practices regarding discovery of testimonial experts under Rule 26(b)(4)(A). This part of the questionnaire was designed to examine the manner and scope of discovery of testimonial experts and whether such discovery was subject to various substantive standards and procedural constraints such as mutuality and timing. In addition, the practitioners' perspectives regarding policies such as "freeriding" were examined.
See infra Appendix A.
See infra Appendix A, questions 8-26.
See infra Appendix A, questions 15, 8 and 9.
See infra Appendix A, question 8.
The Eighth Circuit Study questionnaire also sought to determine the practices regarding discovery of nonwitness experts under Rule 26(b)(4)(B). The questionnaire examined, for example, the use of the "exceptional circumstances" standard of Rule 26(b)(4)(B). The questions regarding subdivision (B) also surveyed the permissibility of discovery of the identity of nonwitness experts and the discoverability of informally consulted experts.
See infra Appendix A, questions 27-36.
See infra Appendix A, question 37.
Finally, the Eighth Circuit questionnaire addressed several issues which overlap subdivisions (A) and (B). For example, the questionnaire sought to determine how attorneys conduct discovery of the pre-retention knowledge of both testimonial and nonwitness experts. In addition, the questionnaire sought to determine whether common practices existed regarding the discovery of testimonial medical experts under Rule 35.
See infra Appendix A, question 26, 34 and 35. The text of Rule 26(b)(4) does not specifically address the topic of discovery of pre-retention knowledge of retained experts, and the courts interpreting the Rule have generally permitted full discovery of pre-retention knowledge of testimonial and nonwitness experts. See generally Day, supra note 29 at 769.
See infra Appendix A, question 20.
B. The Sample of the Eighth Circuit Perspective
The identification of an appropriate research population of attorneys practicing in the district courts of the Court of Appeals for the Eighth Circuit presented several initial problems. The expense associated with mailing to all attorneys admitted to one of the ten district courts in the Eighth Circuit would have been prohibitive, even if reliable lists of the practitioners currently active before the federal courts would have been readily available. The diverse geography of the Eighth Circuit also was a factor presenting potential problems. Under these circumstances, it was necessary to select a sample of the total population of practitioners.
See Rosado v. Wyman, 322 F.Supp. 1173, 1181 (E.D.N.Y. 1970), aff'd, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed. 157 (1971).
The study population was selected through a nonprobability sampling methodology. Specifically, the sample was identified from the official registration lists for the annual Eighth Circuit Judicial Conference. The use of the 1985 and 1986 Judicial Conferences as sources was chosen, in part, because of the locations of these meetings. In 1985, the Conference met in Little Rock, Arkansas, and the 1986 Conference occurred in Minneapolis, Minnesota. These two conferences, therefore, spanned the geographic diversity of the Eighth Circuit. Various exclusions were made from the two lists, including duplicate registrations, Judges and registrants residing outside the seven states of the Eighth Circuit.
See N. Channels, Social Science Methods in the Legal Process 104-06 (1985). A random sample was not available, under the circumstances, both because the total population of active practitioners was not identifiable and, even if identifiable, the costs created further problems. See id. at 104. Even though a random sample might have been preferable, the usefulness of data gathered by nonrandom sampling has been recognized. See Rosado v. Wyman, 322 F.Supp. 1173, 1181 (E.D.N.Y.), aff'd, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 157 (1971) (sampling of research data used even though defendant had not maintained adequate welfare records and alternative of reviewing all records was "entirely impracticable").
The choice of the official registration lists reflects the unavailability of other sources of the names of active practitioners in federal court. A positive feature of the official registration lists at the Judicial Conference is that, in the normal course, the lists include the members of each District Court's Federal Practice Committee. The membership of each Committee is selected by the Chief Judge normally because the attorneys are active in their practice before the federal courts. This provided at least a degree of confidence that the sample included some "active" — i.e., knowledgeable — practitioners.
Not surprisingly, the Little Rock Meeting was relatively heavily attended by attorneys from Arkansas and Missouri. The Minneapolis meeting drew relatively heavily from North Dakota, South Dakota and, of course, Minnesota.
There were a large number of duplicative registrations. The Eighth Circuit Judicial Conference is, as a matter of official policy, "open" to any attorney admitted to practice within the circuit. This policy of "openness" was considered in the selection of the sampling methodology.
After the research population was identified, the Eighth Circuit questionnaire was mailed to 492 practitioners. Two hundred and five practitioners eventually returned the completed questionnaire. Other attorneys responded to the questionnaire indicating that, for one reason or another, they were not able to complete it.
See Appendix A.
Copies of the returned questionnaires are on file with the author.
Twenty-one attorneys responded that, for various reasons, they would not be able to complete the questionnaire. Copies of the letters are on file with the author.
One other feature of expert discovery practice made the Eighth Circuit an attractive source of data. With the possible exception of one district court, no district appeared to have any Local Rules, adopted pursuant to Federal Rule of Civil Procedure 81, that would alter the attorneys' approaches to expert discovery. Four districts (North Dakota, South Dakota, Minnesota and the Western District of Missouri) have no Local Rule addressing the issue.
Several districts have Local Rules which require, as part of the pretrial conference procedure under Rule 16, that experts be identified on a witness list. See Local Rule 21(c)(13) (W.D. and E.D.Ark.); Local Rule 2.4.112 (N.D. and S.D.Ia.); Local Rule 25B(2)(F) (D.Neb.). None of these would alter expert discovery as practiced under Rule 26(b)(4).
The Western District of Missouri has a local rule requiring that expert interrogatories "must be filed [served] at least 90 days prior to the date of trial." Local Rule 33 (W.D.Mo.). Local Rule 33 also requires that the responses be served at least 60 days before trial. See id. This Local Rule arguably imposes a timing constraint on expert discovery. See supra text accompanying notes 87 to 96. The questionnaire was addressed only to the attorneys' perceptions of Rule 26(b)(4), and it presumed the attorneys responded without regard to arguably inconsistent Local Rules. There was no indication that the practitioners from the Western District of Missouri responded in terms of this Local Rule.
V. THE EIGHTH CIRCUIT STUDY: SOME GENERAL OBSERVATIONS
The Eighth Circuit Study asked the practitioners to make observations about how discovery was actually conducted. In general terms, the results of the Study indicate both divergence and conformity to Rule 26(b)(4). The Eighth Circuit attorneys are diverging in both substantive and procedural ways from certain provisions of the text of Rule 26(b)(4). With respect to other provisions of Rule 26(b)(4), the attorneys have closely conformed to the Rule.A. The Independent Preparation Policy
As discussed above, the central policy consideration underlying Rule 26(b)(4) is that each party must independently secure and independently prepare its own expert testimony; the Rule is designed to avoid "freeriding." This policy concern is reflected in both the substantive and procedural provisions of Rule 26(b)(4).
See supra text accompanying notes 72 to 73.
It appears that the Eighth Circuit practitioners overwhelmingly agree with the independent preparation policy. Ninety-four percent responded that litigants were responsible for preparing their own expert testimony. Despite this high degree of agreement, forty-five percent of the Eighth Circuit attorneys indicated that they had observed occasions where "one party has . . . been permitted to 'freeride' from the other party's expert. . . ." It would appear that, although the practitioners agree with the policy rationale underlying the Rule, they have observed transgressions of the rationale.
See infra Appendix A, question 8. The South Dakota attorneys had also overwhelmingly agreed, at least on the theoretical level, with the rationale of the independent preparation rule. See Day, South Dakota Attorneys' Study, supra note 2, at 47.
See infra Appendix A, question 8.
See infra Appendix A, question 24.
See id. The presence of "freeriding" might be cured by clarification or more rigorous enforcement of the Rule. Of course, some freeriding may be tolerated because of reciprocity or other informal arrangements.
B. The "Mutuality" Principle
The Eighth Circuit Study inquired whether the discovery of testimonial experts is governed by the principle of mutuality. As discussed above, nothing in the text of the Rule requires mutuality in expert discovery. Subject to judicial supervision, each party may proceed, pursuant to its own strategy, at its own pace.
See infra Appendix A, question 9.
See supra text accompanying notes 89 to 92.
See Fed.R.Civ.P. 26(d).
The results of the Eighth Circuit Study indicate that the practitioners have observed the use of mutuality as a substantive limitation on expert discovery. Sixty-four percent of the respondents observed that a form of mutuality operates as a factor in expert discovery. Since the Rule eschewed any reliance on mutuality, this constitutes a major divergence from the intent of the Rule.
See infra Appendix A, question 9.
Id. The South Dakota attorneys had also reported that, apparently as a result of informal agreements, a form of mutuality is a dominant feature of expert discovery for South Dakota practitioners. See Day, South Dakota Attorneys' Study, supra note 2, at 48. The percentage of Eighth Circuit practitioners observing the use of mutuality is considerably lower than in the South Dakota study. This may be a function of the shorter experience with the Rule in South Dakota — since only 1977.
C. The Use of "Timing Constraints" in Expert Discovery
The use of timing as a limiting device on expert discovery is another extra-textual restraint. As with mutuality, Rule 26(b)(4) places no explicit timing limitation on the discovery of experts.
See supra text accompanying notes 91 to 95.
The Study results suggest that the Eighth Circuit practitioners are, in general, diverging from the Rule. Sixty-three percent of the attorneys report that they impose an extra-Rule timing constraint on the expert discovery process. The practitioners deviate from the Rule's "race" approach and restrict the timing of expert discovery to the immediate pretrial period.
See infra Appendix A, question 15. See also infra Appendix A, question 17a. In contrast, nearly fifty percent of the South Dakota practitioners had reported that they did not impose a timing limitation. See Day, South Dakota Attorneys' Study, supra note 2, at 48. The South Dakota attorneys were willing to permit discovery of their expert even before both sides had settled upon their testimonial experts. Id.
See infra Appendix A, question 15a.
D. The Discovery of Medical Experts
The Eighth Circuit practitioners were asked whether discovery of medical experts was conducted differently than discovery of other experts. Over eighty-four percent of the respondents indicated that medical experts who would testify were subject to discovery in the same fashion as nonmedical testimonial experts. The results indicate that, with respect to medical experts, discovery is conducted in a fashion consistent with the text of Rules 26(b)(4) and 35(b).
See infra Appendix A, question 19.
See id. The South Dakota attorneys had also reported that they conduct discovery of testimonial medical experts in the same fashion in any other testimonial expert. See Day, South Dakota Attorneys' Study, supra note 2, at 49. These results are consistent with the responses reported by Graham's study. See Graham, Part Two, supra note 2, at 183.
VI. THE EIGHTH CIRCUIT STUDY: TESTIMONIAL EXPERTS
A. The "Two-Step" Requirement
See supra text accompanying notes 39 to 43.
See supra text accompanying notes 41 to 43.
See infra Appendix A, question 13a.
See infra Appendix A, question 13. The South Dakota practitioners had responded that they also customarily conduct discovery without resorting to the court. See Day, South Dakota Attorneys' Study, supra note 2, at 50. See also Ill.Sup. Ct.R. 220, Ill.Ann. Stat. ch. 110A, § 220 (Smith-Hurd 1985) (rejecting the two-step procedure in the Illinois rule governing expert discovery).
The divergence by the Eighth Circuit lawyers from the two-step constraint is not particularly surprising. Every previous study reported the same result. In this regard, the Eighth Circuit Study only confirms the obsolescence of the two-step procedure.
See Graham, Part Two, supra note 2, at 177; Day, South Dakota Attorneys Study, supra note 2, at 51; Day and Dixon, supra note 2, at 394.
The Eighth Circuit Study's results do suggest, however, a new perspective on the two-step constraint. Forty-eight percent of the Eighth Circuit practitioners report that they "customarily follow the 'two-step' procedure" with respect to their discovery against an adversary. At first glance, this seems inconsistent with the data indicating that the two-step procedure is almost universally ignored. The study, however, was designed to examine both the offensive and defensive strategies of the lawyers. The responses suggest that, even though the practitioners realize that the two-step procedure will ultimately be ignored, they proceed according to Rule 26(b)(4)(A)'s requirements. Even though they do not expect to be constrained by the two-step procedure, the lawyers are protecting their discovery against the two-step trap.
See infra Appendix A, question 16a.
See infra Appendix A, question 13a.
See infra Appendix A, question 169. This approach suggests "careful lawyering." The practitioners are complying with the Rule's requirements even though they do not expect the full impact of the Rule ( i.e., resort to the Court) to apply. I suspect that the practitioners comply with subdivision (A)(i) and send expert interrogatories, but they do not expect to be compelled to secure a court order under subdivision (A)(ii) for non-interrogatory discovery. See Day and Dixon, supra note 2, at 390.
B. Testimonial Experts: The Adequacy of Interrogatory Discovery
The Eighth Circuit practitioners have observed that, as a first step, the use of interrogatories is quite common. This common use of expert interrogatories is consistent, in some respects, with the Rule's approach. The Rule, however, contemplates a more exclusive function for interrogatories in expert discovery. The text of Rule 26(b)(4)(A) goes further and strongly suggests that the use of expert interrogatories alone would, in the normal course, constitute adequate discovery of an adversary's testimonial expert.
See infra Appendix A, question 10a. Similarly, 62.5 percent of the responding South Dakota attorneys had indicated that interrogatories were commonly used as a first step in expert discovery. See Day, South Dakota Attorneys' Study, supra note 2, at 49.
See supra text accompanying notes 39 to 43.
In their responses to a question examining that premise of Rule 26(b)(4)(A), the Eighth Circuit practitioners overwhelmingly indicate that interrogatory discovery by itself would not be adequate preparation for cross-examination and rebuttal of an adversary's testimonial expert. In this area, the results of the Eighth Circuit Study dovetail closely with the results reported in the earlier studies. In the South Dakota Study, for example, over eighty-eight percent of the South Dakota attorneys reported that interrogatories alone would not be adequate.
See infra Appendix A, question 22. Ninety-one percent of the practitioners reported that they did not believe interrogatories alone would be adequate. See id. One Eighth Circuit attorney provided a note in the margin of the questionnaire that summarizes why interrogatory discovery alone is inadequate: the "answer is usually purposely vague."
See Day, South Dakota Attorneys' Study, supra note 2, at 51. Professor Graham's study concluded that the two-step procedure "overwhelmingly is recognized as a totally unsatisfactory method of providing adequate preparation for cross-examination and rebuttal." Graham, Part Two, supra note 2, at 172.
See Day, South Dakota Attorneys' Study, supra note 2, at 51.
In sum, the two-step procedure mandated by Rule 26(b)(4)(A) has apparently been rejected by the Eighth Circuit practitioners. As the attorneys recognize, the reason the two-step procedure is being ignored is that expert interrogatories under Rule 26(b)(4)(A)(i) do not provide, by themselves, adequate preparation for cross examination and rebuttal of an adversary's testimonial expert.
See Brockweg v. Anderson, 117 F.R.D. 563, 565 (M.D.N.C. 1987); Dennis v. BASF Wyandotte Corp., 101 F.R.D. 301, 303 n. 2 (E.D.Pa. 1983); Graham, Part Two, supra note 2, at 172.
C. The Scope of Discovery of Testimonial Experts under Rule 26(b)(4)(A)(ii)
Although subdivision (A)(ii) is substantively ambiguous, the use of the relevance scope of discovery for testimonial experts seems to be consistent with drafters' intent for the provision. Since this issue seemed relatively "settled," the Eighth Circuit Study had only a narrow focus.Even under this narrow inquiry, the Eighth Circuit Study revealed certain perceptions about the scope of discovery of testimonial experts. In particular, the practitioners report that the pre-retention knowledge of testimonial experts is subject to a mere "relevance" standard. Since the discovery of the testimonial expert's post-retention knowledge is also governed by the Rule 26(b)(1) relevance standard, it appears that discovery of testimonial experts under Rule 26(b)(4)(A) is generally unconstrained.
See infra Appendix A, question 25a.
See Soo Line R.R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1376-79 (8th Cir. 1975).
D. Testimonial Experts: The Adequacy of Current Practices
In sum, the Eighth Circuit Study demonstrates a high degree of divergence from the Rule's provisions for discovery of testimonial experts. However, although their expert discovery practices diverge from the procedures mandated by the Rule, the Eighth Circuit practitioners report that their "current discovery practices" provide an adequate basis for trial preparation. Seventy-seven percent of the practitioners report that their current practices — although divergent from the text of the Rule — permit adequate preparation. This is consistent with the earlier studies. The current practices seem to be successful at least in part because the practitioners ignore the Rule's constraints.
See infra Appendix A, question 20.
See infra Appendix A, question 20a. The perception that current practices of Eighth Circuit practitioners are adequate appears to derive from two additional sources besides their deliberate rejection of the two-step procedure. First, the attorney use a relevance standard under subdivision (A)(ii). See infra Appendix A, question 25. Second, over ninety percent of the Eighth Circuit practitioners customarily insist on taking the deposition of their adversary's expert. See infra Appendix A, question 11e. Although the practitioners commonly seek production of the adversary's expert's report, see id. 11f to 11g, the report is not generally a substitute for a deposition. See id. question 11e. As one attorney noted in the margin of the questionnaire, the "report usually too sketchy prepared that way on purpose."
See Day, South Dakota Attorneys' Study, supra note 2, at 52.
VII. THE SURVEY RESULTS: NONWITNESS AND INFORMALLY CONSULTED EXPERTS
Nonwitness experts and informally consulted experts are primarily used by lawyers as pretrial advisors. Even in large, complex, multiparty litigation, questions regarding the discovery of such experts rarely surface. Under these circumstances, the discussion of the Eighth Circuit practitioners responses will focus on the issues of the use of the exceptional circumstances test, the question of the discoverability of the identities of nonwitness experts, and the discoverability of informally consulted experts.
See supra text accompanying notes 65A to 65J.
See Comment, supra note 38, at 351-52 n. 15; Day, South Dakota Attorneys' Study, supra note 2, at 52 ("nonwitness experts are only used in a very small percentage of civil cases handled by South Dakota practitioners").
A. The Use of the Exceptional Circumstances Standard
B. The Discovery of the Identity of a Nonwitness Expert
See infra Appendix A, question 28.
See infra Appendix A, question 28. Many South Dakota attorneys allowed discovery of their nonwitness experts without a showing of exceptional circumstances. See Day, South Dakota Attorneys' Study, supra note 2, at 53.
In contrast, the South Dakota attorneys had reported that they eschewed the high standard of protection granted by Rule 26(b)(4)(B). See Day, South Dakota Attorneys' Study, supra note 2, at 54. This approach was most frequently justified on the ground it advanced the client's interests. See id. Although the difference between the Eighth Circuit practitioners and the South Dakota practitioners is not immediately explainable, it may reflect the fact that the Eighth Circuit practitioners have operated under Rule 26(b)(4)(B) for a greater period of time.
The failure to use the exceptional circumstances requirement as a protective device for nonwitness experts is a major substantive divergence from the text of the Rule. Id. at 53. See Graham, Part Two, supra note 2, at 192-93. There are a number of reasons to waive the heightened protection. For example, the attorney may wish to expose a nonwitness expert's report or opinions to an adversary as a vehicle for securing an early settlement of a matter. Foregoing the protection granted by the Rule in order to achieve the interests of a client is, of course, a tactical decision made by the counsel and the client.
Despite the recent Ager and Kuster decisions, only forty-one percent of the Eighth Circuit attorneys would require a showing of exceptional circumstances. In contrast, thirty-seven percent of the responding practitioners would permit such discovery as long as a showing of mere relevance were made. Even though an analysis of the policies underlying subdivision (B) suggests that the identities of nonwitness experts deserve greater protection, a large number of practitioners seem to forego the qualified immunity of exceptional circumstances.
See supra text accompanying notes 39 to 42.
See infra Appendix A, question 34a.
See infra Appendix A, question 34e.
C. The Discovery of Informally Consulted Experts
Under the current caselaw, informally consulted experts receive a total immunity against discovery. This immunity should encourage practitioners to use informally consulted experts, even if they serve only a narrow "screening" function. Despite the incentive provided by Rule 26(b)(4), a majority of the Eighth Circuit practitioners reported that they do not regularly utilize informally consulted experts.
See text supra accompanying note 52.
See infra, Appendix A, question 6. The percent of the practitioners who did use informally consulted experts was forty-two percent.
Of the practitioners who do utilize the informally consulted experts, a substantial majority report that they take full advantage of the discovery immunity. Over ninety-one percent indicate that they never voluntarily permit discovery of their "advisory" experts. These results demonstrate that, in this respect, the Eighth Circuit practitioners appear to conform their discovery practices to the Rule. The only question left open is why more practitioners do not avail themselves of this complete immunity against discovery.
See infra Appendix A, question 35b.
See Healy v. Counts, 100 F.R.D. 493, 494 (D.Col. 1984). It seems likely that, as the practitioners become aware of the distinction between "nonwitness experts" and "informally consulted experts," they will tend to use the latter for "consulting" functions. If the informally consulted expert were absolutely immune from discovery, this provides a strong incentive to use them.
VIII. CONCLUSION
The Eighth Circuit Study reveals that the attorneys practicing in the federal district courts both conform to — and diverge from — the constraints imposed on expert discovery by Rule 26(b)(4). The instances where the practitioners follow the Rule and where they deviate from it appear to coexist in a dynamic, if unanticipated, relationship. Both the areas of conformity and of divergence suggest that, in an adversarial setting, the attorneys pay careful attention to the interests of clients.There are several significant areas of conformity. The Eighth Circuit attorneys subscribe to the basic policy of independent preparation underlying Rule 26(b)(4). They conform to the Rule regarding medical experts. Perhaps reflecting their general adherence to the independent preparation policy, the attorneys vigorously conform to the provisions of Rule 26(b)(4)(B); they protect their nonwitness and informally consulted experts against discovery.
See supra text accompanying notes 116 to 120.
See supra text accompanying notes 129 to 130.
See supra text accompanying notes 157 to 163.
In contrast to these instances of conformity, the Eighth Circuit practitioners have diverged from certain of the procedures and substantive standards established by the text of Rule 26(b)(4). For example, with respect to discovery of testimonial experts, three major divergences are suggested by the Eighth Circuit Study. First, the lawyers have generally ignored the "two-step" procedure under Rule 26(b)(4)(A). Second, the practitioners almost always avoid resorting to judicial supervision of discovery under Rule 26(b)(4)(A)(ii). Third, the attorneys diverge from Rule 26(b)(4) by imposing the nontextual condition of mutuality upon expert discovery. Taken together, these results demonstrate a significant divergence from the procedural constraints established by the Rule.
See supra text accompanying notes 133 to 135.
See supra text accompanying notes 133 to 134.
See supra text accompanying notes 133 to 134.
See supra text accompanying notes 124 to 125.
The divergences from the text of Rule 26(b)(4) suggest more than "creativity" on the part of the attorneys. The divergences strongly suggest that various parts of the Rule should be modified.
See Ill.Sup.Ct. Rule 220, Ill.Ann. Stat. Chap. 110A, ¶ 220 (Smith-Hurd 1985); Day and Dixon, supra note 2, at 397-98. See generally Glaser, supra note 3, at 207-09, 219-24.
Even though significant divergences exist, the Eighth Circuit practitioners confirm that the mixture of conformity and divergence in actual practice allows for adequate pretrial discovery of experts. Although the attorneys' practices diverge from the standards established by the Rule, the attorneys are able, largely through informal agreements, to pursue discovery in a satisfactory fashion. The practitioners report that, although various procedural and substantive divergences exist, they believe the system works well.
See infra Appendix A, question 21.
See Day, South Dakota Attorneys' Study, supra note 2, at 56.
The Eighth Circuit practitioners appear to conform to those aspects of Rule 26(b)(4) which protect the consultive function of experts. Where the expert-attorney consultive relationship is secondary to other functions performed by the expert, as in the case of testimonial experts, the Eighth Circuit practitioners apparently diverge from the Rule's provisions. The combination of conformities and divergences reported in the Eighth Circuit Study apparently permit the practitioners to fulfill the trial preparation goal of civil discovery with a minimal intrusion on the pretrial consultive assistance provided by expert witnesses.
APPENDIX A
[Appendix A represents the questionnaire sent to the Eighth Circuit practitioners. The collected answers are presented numerically in the blanks originally provided for the responses. Because the number of responses varied from question to question, the total number of "substantive" responses is indicated, for certain questions, by the "T = ___" notation. The "T" figure does not include responses which indicated a lack of experience.]
Survey of Expert Witness Discovery: Federal Practitioners in the 8th Circuit
I. Introduction:
This survey is designed to identify some of the prevailing practices regarding civil discovery of experts in the federal district courts and the role played in that process by the Federal Rules of Civil Procedure. For your convenience, we have attached a copy of Fed.R.Civ.Pro. 26(b)(4) to this Survey as Appendix A. Thank you for your time and cooperation.
For each question, please respond in terms of your normal or customary practices.
Please mark an X in the space provided. We hope to make the compiled results of this survey generally available to the participants. Thank you.
II. Preliminary Questions:7 23 33 18 38 32 43 21 16 24 17 38 11 25 9 27 2 2620 16 15 18 14 32 6 24 32 12 not 2643 2 84 2 27 2 12 1 5 0 11 written retention agreement 67 0 30 5 12 7 8 8 2 30 23 regularly 82 110
1. How many years have you practiced? T = 194 a. 1-5 e. 21-25 b. 6-10 f. 26-30 c. 11-15 g. More than 30 d. 16-20 2. What percentage of your time is currently spent in civil litigation in federal courts? T = 197 a. 10% f. 60% b. 20% g. 70% c. 30% h. 80% d. 40% i. 90% e. 50% j. 100% 3. Of the time you do spend in civil litigation in federal courts, what percentage of the time do you retain experts you expect to call as witnesses at trial under Fed.R.Civ.Pro. (b)(4)(A)? T = 192 a. 10% f. 60% b. 20% g. 70% c. 30% h. 80% d. 40% i. 90% e. 50% j. 100% 4. Of the time you do spend in civil litigation in federal court, what percentage of the time do you retain experts whom you do expect to call at trial under Fed.R.Civ.Pro. (b)(4)(B)? T = 197 a. Never g. 60% b. 10% h. 70% c. 20% i. 80% d. 30% j. 90% e. 40% k. 100% f. 50% 5. When you retain either type of expert, what percentage of the time do you use a (such as a letter or contract)? T = 197 a. Never g. 60% b. 10% h. 70% c. 20% i. 80% d. 30% j. 90% e. 40% k. 100% f. 50% 6. In civil litigation in federal courts do you use informally consulted (non-retained) experts? T = 192 a. Yes b. No 7. What is the name of the District in which you practice most frequently? a. _____________________________________III. The following questions deal with discovery of experts expected to be called at trial under Fed.R.Civ.Pro. 26(b)(4)(A).174 10 i.e. 123 68 usual Please check only one 110 36 10 23 152 20 120 48 168 9 160 13 180 11 32 12 8 26 8 26 8 28 23 20 without 175 17 11 1 6 2 2 after 128 62 94 91 166 3 35148 12 medical expert 140 25 149 38 28 8 14 12 28 6 26 6 29 5 3 2610 181 8 0 3 4 1 3 2 0 4 1 your i.e. 92 99 26testimonial 156 7 9 4 8
8. Do you believe that, as the discovery of testimonial experts is normally conducted, each litigant is effectively required to obtain and prepare his own expert testimony? T = 184 a. Yes b. No 9. Do you believe that, as discovery of testimonial expert witnesses is normally conducted, such discovery is governed by a principle of mutuality, (, simultaneous or near simultaneous exchange of reports and/or closely scheduled depositions)? T = 191 a. Yes b. No 10. Your pattern of discovery of an adverse party's testimo- nial expert can best be described as (): T = 179 a. The use of interrogatories as required by Rule 26(b)(4)(A)(i), which requires the adverse party to identify each expert expected to be called at trial, and to state the substance of the facts and opinions upon which the expert is expected to testify. b. Having proceeded according to Rule 26(b)(4)(A)(i), but having found the results unsatisfactory, you move the court for further discovery by other means. c. Interrogatories are rarely used and the expert's report is usually furnished by my adversary in response to a demand for production of documents. d. The use of some other informal means of discovery not explicitly mentioned in Rule 26(b)(4)(A). 11. During the course of your discovery of an adverse party's testimonial expert, which of the following discovery techniques do you normally use? a. Demand for the expert's reports made: 1. Yes 2. No b. Expert's Report Furnished: 1. Yes 2. No c. Interrogatories Propounded: 1. Yes 2. No d. Interrogatories Actually Answered: 1. Yes 2. No e. Depositions are taken: 1. Yes 2. No 12. In what percentage of cases involving testimonial experts are normally both the expert's report furnished and the expert deposed? T = 191 a. 10% or less f. 60% b. 20% g. 70% c. 30% h. 80% d. 40% i. 90% e. 50% j. 100% 13. Is it customary for discovery of testimonial experts to occur resort to the Court as provided by Fed.R.Civ.Pro. 26(b)(4)(A)(ii)? T = 192 a. Yes. b. No. 14. If your answer to question 13 was No, what form does the Court's order allowing discovery take? a. Expert deposed. b. Expert's Report furnished. c. Both a and b above. d. Other. e. No experience. 15. Is it customary to say that discovery of testimonial experts occurs only both sides have settled upon experts expect- ed to be called? T = 190 a. Yes. b. No. 16. With respect to your discovery of an adversary's expert, do you customarily follow the "two-step" procedure established by Rule 26(b)(4)(A)(i) and (ii)? T = 185 a. Yes. b. No. 17. If a medical examination were conducted pursuant to Fed.R. Civ.Pro. 35 or upon agreement of the parties, is it customary for the party against whom the order is made to request a copy of the report? T = 169 a. Yes. b. No. 18. If your answer to question 18 was Yes, and the report is delivered pursuant to Fed.R.Civ.Pro. (b), does the party causing the examination usually request a like report of any examinations, previously or thereafter made, of the same condition? T = 160 a. Yes. b. No. 19. In your practice in federal court, is the discovery of an adverse party's expected to be called at trial the same as that followed for non-medical test imonial experts? T = 165 a. Yes. b. No. 20. Do you believe that current discovery practices under Fed.R. Civ.Pro. 26(b)(4) of testimonial experts permit adequate preparation for cross-examination and rebuttal at trial? T = 187 a. Yes. b. No. 21. If your answer to question 20 was No, inadequate discovery for cross-examination and rebuttal is most frequently a result of: (Answer a-e separately; more than one question may be answered yes.) a. Lack of a deposition of the expert. 1. Yes. 2. No. b. Lack of a report of the expert. 1. Yes. 2. No. c. Not receiving the expert's report in a timely fashion. 1. Yes. 2. No. d. Lack of adequate responses to interrogatories. 1. Yes. 2. No. e. Lack of cooperation by opposing counsel. 1. Yes. 2. No. f. Other. 22. Do you believe that, by themselves, an adversary's answers to interrogatories pursuant to Fed.R.Civ.Pro. (b)(4)(A)(i) would normally permit adequate preparation for cross-examination and rebuttal of an adversary's testimonial expert? T = 191 a. Yes. b. No. 23. If your answer to Question 22 was yes, in what percentage of cases do you find interrogatories sufficient preparation for cross-examination and rebuttal of an adversary's testimonial expert? a. 10% f. 60% b. 20% g. 70% c. 30% h. 80% d. 40% i. 90% e. 50% j. 100% 24. Concerning the discovery of testimonial expert, do you believe your adversaries have ever been permitted to "freeride" (, prepare their case) from your expert? T = 191 a. Yes. b. No. 25. Under Fed.R.Civ.Pro. (b)(4)(A), what do you believe to be the scope of discovery of the expert's "pre-reten- tion" knowledge (information your expert acquired prior to his retention)? T = 184 a. The testimonial expert's pre-retention knowledge is freely discoverable (only a showing of relevance need required). b. Before discovery of the testimonial expert's pre-retention knowledge, a showing of "good cause" is required. c. Before discovery of the testimonial expert's pre-retention knowledge, a showing of "substantial need" is re- quired. d. Before discovery of the testimonial expert's pre-reten- tion knowledge, a showing of "exceptional circumstances" is required. e. Other. IV. The following questions deal with Fed.R.Civ.Pro. 26(b)(4)(B) and discovery of experts not expected to be called at trial ("nonwitness experts"). (If you answered "Never" to question # 4, do not answer questions 26 through 36.)88 1 44 0 8 0 5 2 2 3 3 48 79 19 ever 17 44 85 8 4 7 5 9 9 19 22 2652 e.g 8 14 30 14 7 41 48 38 16 32 identity 44 10 8 7 39 9 37 99 4 2 1 3 3 26. With respect to nonwitness experts, in what percentage of your cases does discovery of such experts occur? T = 156 a. Never g. 60% b. 10% h. 70% c. 20% i. 80% d. 30% j. 90% e. 40% k. Always f. 50% 27. In order to conduct discovery of your adversary's nonwitness experts, have you normally been required to show "exceptional circumstances" (under which it is impracticable for you to obtain facts or opinions on the same subject by other means)? T = 67 a. Yes. c. No experience. b. No. 28. Do you allow discovery of your nonwitness expert without a showing of "exceptional circumstances" by your adversary? T = 102 a. Yes. c. No experience. b. No. 29. If your answer to question 28 was Yes, what showing have you required? a. No showing; the nonwitness expert is discoverable in the same manner as the testimonial expert under SD RCP 26(b)(4)(A). b. Good Cause. c. Substantial Need. d. Other. 30. If you have permitted discovery of your nonwitness expert without a showing of "exceptional circumstances", what is the reason (more than one may be checked)? a. Your customary procedure. b. Convenience of the parties. c. Belief that your client's position will be helped. d. Informal agreement between parties without regard to Rule 26(b)(4)(B). 31. In your experience, what has constituted "exceptional circumstances" satisfying Fed.R.Civ.Pro. (b)(4)(B)? (You may check more than one answer.) a. Changed circumstances where it has been impossible for the expert to view or analyze the item changed (., the machine that has caused personal injury has been destroyed after the other party's expert was able to view, test or analyze why the machine caused the injury). b. Discovering party's expert could not properly under- stand, except at the expense of an inordinate amount of time, money and resources, the object of discovery. c. Facts are present which indicate that the party may be proceeding with litigation without adequate basis in fact to maintain the action. d. Party is attempting to suppress otherwise relevant information. e. Party being discovered had not suggested a practicable alternative method by which party seeking discovery could obtain the information sought. f. Other 32. In your experience, has the nonwitness expert's pre-retention knowledge been freely discoverable as an ordinary witness? (See Question 26 for definition of pre-retention knowledge). T = 79 a. Yes. c. No experience. b. No. 33. If your answer to question 32 was Yes, has there generally been a careful distinction made as to the expert's pre-retention knowledge and that knowledge obtained in "anticipation of litigation"? T = 48 a. Yes. b. No. 34. As a condition of discovery of the (name and address) of your non witness experts, what showing have you required? T = 108 a. Exceptional circumstances b. Substantial need c. Good case d. Other e. Only relevance 35. Do you ever permit an adversary to take discovery of your "informally consulted" experts? T = 108 a. Yes. c. No experience. b. No. 36. If your answer to question 35 was Yes, what showing have you required prior to discovery of your informally consulted expert? a. Exceptional circumstances b. Substantial need c. Good cause d. Relevance e. Other Thank you for your cooperation and help!