Thursday, September 3, 2009

Discovery Of Expert Information Over A Civil Rule 26 (b)(5)(B) Objection.

There seems to be expert(s) everywhere who are willing to investigate, document and analyze almost any subject matter on short notice and later testify about their efforts, if only given the chance. Sometimes a party or parties to litigation may attempt to protect discovery of what expert(s) find at the scene of a loss even though the expert(s) were among the first to arrive and were able to collect important evidence before it dissipated. For example, it is not uncommon for a property owner to call their insurer upon discovery of a loss caused by landslide, fire, flood or earthquake (or some other event) and, in turn, the insurer dispatches an expert (or communicates with one already on site) to try and quickly discern and document the cause of the loss, as well as to determine whether any ongoing damages can be mitigated. However, sometimes the party who tasked the expert, near the inception or shortly after the occurrence of loss, does not want to employ the expert for purposes of litigation for tactical reasons. In Washington, Civil Rule 26 (b)(5)(B) may be used by a party to try and protect such expert information from discovery providing in pertinent part:


(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (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, 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, and to state such other information about the expert as may be discoverable under these rules. (ii) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or opinions held by an expert 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.


CR 26 (b)(5)(B) (emphasis added).


I have been involved in many case(s) in which an expert (e.g., a geologist; a fire investigator, etc.) may have the best and perhaps only information of what actually happened but my opponent has attempted to conceal or exclude it claiming the information was gathered by a consulting expert for the purposes of or in anticipation of litigation and that he or she has no intention of calling the expert to testify at trial. A typical response to such an objection is that the information sought could not and cannot be obtained on the critical issue of causation by any other means (i.e., a substantial need exists and "exceptional circumstances" are present). See CR 26 (b)(5)(B). For example, the party seeking the expert discovery over objection may argue that the expert is the kind of exceptional witness discussed in Tope v. King County, 189 Wn. 463 (1937); an expert who was able to observe the “premises at the time that the damage was wrought” and hence his testimony is more salient and objective by the very nature of the timing and the trained skill of his factual observations. The determination of whether the party seeking discovery has shown exceptional circumstances (i.e., that it is impracticable or impossible to obtain the information by other means) is vested in the sound discretion of the trial judge, who should look at the facts and circumstances of each case in arriving at an ultimate conclusion. See Heidebrink v. Moriwaki, 104 Wn.2d 392 (1985). See also, Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979); Roggelin v. Auto-Owners Ins., 2002 Ohio 7310 (Ohio App. 2002).


Another argument for compelling the discovery of the expert information over a Civil Rule 26 objection is that the information was not obtained or developed for or in anticipation of litigation but rather that the expert was dispatched for some other purpose and in a different context. In determining whether a particular document was prepared in "anticipation of litigation" within the meaning of Civil Rule 26 a court should consider the expectations of the specific parties involved in light of the rationale or general policy of the rules to allow broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries. Id. See generally, Johnson v. McCay, 77 Wn.App. 603, 609 (1995) In Re: Firestorm 1991, 129 Wn.2d 130 (1996); Escalante v. Sentry Ins., 49 Wn.App. 375 (1987). The party seeking disclosure of expert or work-product information over objection may also argue waiver where all or part of the discovery sought has previously been voluntarily disclosed. See Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002).


Disputes over the discovery and/or use of expert information are usually very contentious because their outcome may also determine the outcome of the entire lawsuit. The facts concerning how the expert was originally employed, for what purpose and whether the information should be shared also usually present difficult issues and balancing tests (e.g., broad discovery/fairness versus individual party rights) for the court to decide.