Reprinted with permission.
BullsEye: June 2013
Statements Inadvertently Waive Protection?
Maggie Tamburro on 2013/06/25
Talk about pre-trial expert issues that can cause heartburn
. . . try these on for size: When are opinions held by a non-testifying expert discoverable by an opposing party,
and, if protected, can statements made to an opposing party operate to waive that protection?
In a June 5th
decision on a motion to compel discovery of an opposing party's non-testifying expert, a federal district court
in Iowa has issued a ruling addressing these sticky issues in a breach of implied warranty and breach of contract
If you don't typically see a lot written on these expert issues, that's hardly a surprise. The issues
are complicated and can give way to confusion and in some cases disagreement among courts, as aptly noted in this
decision. However, sticking one's head in the sand could result in landing you on the wrong side of an adverse expert
The suit involved allegations that the defendant, a New York manufacturing company,
supplied plaintiff with defective products, which plaintiff used to rebuild automotive products which it then sold
to end consumers.
Plaintiff filed suit in 2012, and later that year the court allowed defendant to add a
third-party claim against another entity, based on claims that defendant should be allowed recovery for contribution
or indemnity if certain products were found to be defective.
In April of this year plaintiff filed a motion
to compel, seeking discovery of opinions held by the defendant's expert, a professional engineer with a B.S. and
M.S. in metallurgical and materials engineering, who, at defendant's behest, allegedly made a trip to plaintiff's
place of business in 2009.
The Expert Visit
During the visit, the expert allegedly
met with plaintiff's CEO and defendant's insurer and examined products supplied by defendant which were at issue
in the case.
According to an affidavit filed in support of plaintiff's motion to compel, plaintiff's CEO
alleged that, during that visit, the expert "verbally informed me that he agreed with my assessment that the bearings
and friction paper sold to [plaintiff] by [defendant] were defective and were the cause of the damage not only to
the torque converters but also to the transmissions to which the torque converters were attached."
CEO also allegedly stated in his affidavit that, following the expert's visit, the CEO had received a phone call
from an adjuster with defendant's insurer, who "read to me portions of the [expert's] report indicating [the expert's]
opinion that the bearings and friction paper were defective and were the cause of the loss and damage to [plaintiff]
and to its customers."
Defendant didn't identify the expert who made the 2009 trip to plaintiff's place of
business as one it intended to call at trial, effectively keeping the expert's opinions from being discoverable
under the premise that he was a consulting, not a testifying expert.
Plaintiff had other ideas, however.
Based in part on its theory that the expert's statements to plaintiff's CEO waived discovery protection provided
under FRCP 26, plaintiff tried to convince the court that it should be allowed to take the deposition of the defendant's
The Expert Issues
At issue in plaintiff's motion were (1) whether
the opinions of the defendant's expert, who had not been designated as a testifying witness, were discoverable,
and (2) if the expert's opinions were not discoverable, did statements allegedly made by the expert operate as a
waiver of any applicable discovery protection or privilege?
In its ruling, the court hit
on two touchy topics.
1. When, if ever, are opinions held by an expert, who has been retained but
not designated as a testifying witness, discoverable by an opposing party?
Generally speaking, FRCP
26(b)(4)(D) protects from discovery by an opposing party facts known or opinions held by a non-testifying expert
retained in anticipation of litigation, who is not expected to be called as a witness at trial.
FRCP 26 allows for certain discovery of non-testifying experts upon a showing of "exceptional circumstances" – if
it is "impracticable for the other party to obtain facts or opinions on the same subject by other means" – which
the party seeking such discovery bears the burden of showing.
Noting that a premise of the rule protecting
an opposing a party's consulting expert from discovery is fairness and, quoting the S.D. of New York, "allowing
counsel to obtain the expert advice they need . . . without fear that every consultation with an expert may yield
grist for the adversary's mill," the court found no such exceptional circumstances here. Plaintiff could gain equivalent
information though its own experts and had, in fact, retained an expert who it intended to call at trial.
The court also noted the absence of facts other courts have found demonstrative of exceptional circumstances
– for example changed conditions that would prevent a first-hand observation by more than one party's expert. But
the court differentiated the case here, stating, "There are no circumstances preventing [plaintiff's] expert
from examining the parts first hand and thereby acquiring the same information gathered by [defendant's expert]."
Therefore, plaintiff failed to establish the requisite "extraordinary circumstances" under FRCP 26 needed to depose
defendant's non-testifying, consulting expert.
With that question behind it, the court ventured on to a more
2. Did statements made by defendant's expert operate as a waiver of discovery protections
afforded a non-testifying expert under 26(b)(4)(D)?
Plaintiff asserted that the statements made
by defendant's expert and defendant's insurer waived discovery protections afforded non-testifying experts under
The court recognized that whether statements made to third parties can act to waive the
privilege is not well-settled, stating, "It is unclear . . . whether the waiver doctrine applies to Rule 26(b)(4)(D)."
Interestingly, some courts have determined that when a party's non-testifying expert is protected under FRCP
26(b)(4)(D), that protection is not subject to waiver. Here the court cited a decision out of the E.D. of Pennsylvania
which concluded that, because FRCP26(b)(4)(D) stems from fairness concerns – not the work product doctrine – the
question of whether a party has waived discovery protections with regard to a non-testifying expert was irrelevant.
However, the court cited instances where other federal courts have suggested exactly the opposite – that the
protections under FRCP 26(b)(4)(D) can, in fact, be waived (citing a case out of the N.D. of Indiana, which noted
that courts have found waiver "when the holder of a privilege ‘voluntarily discloses . . . any significant part
of the privileged matter'").
The court here concluded that defendant did not waive the discovery protection
under FRCP 26(b)(4)(D), stating, "It appears dubious that the waiver doctrine applies to the protections afforded
to facts known or opinions held by non-testifying consulting experts."
Regardless, the court found an escape
hatch from further debate on the issue when it aligned itself with courts that have rejected waiver arguments based
on actions taken by those who are not a "holder of the privilege" – the holder here being the defendant, not the
In doing so, the court made a crucial distinction: In this instance the party didn't
make the disclosures, rather, the party's expert and insurer made the disclosures. The court concluded, "These disclosures
do not constitute a waiver of the protections of Rule 26(b)(4)(D) because only [defendant], as holder of the protections,
could waive them."
In the end, the court decided that the opinions held by defendant's non-testifying, consulting
expert were not discoverable under any of the plaintiff's theories.
The citation to the Order Regarding Motion
to Compel is
Precision of New Hampton, Inc. v. Tri Component Products Corp., No. C12-2020 (N.D. Iowa, June 5, 2013).
Do you agree with this court's ruling?
Tamburro is an attorney, legal writer and commentator who holds a B.A. from The University of Texas and a J.D.
from The John Marshall Law School. Maggie graduated 5th in her class from John Marshall, served as Law Review Associate
Editor, and was awarded the Dean's Scholarship Award for three consecutive years. Maggie holds the position of Senior
Copywriter at IMS ExpertServices, where she handles the creation and optimization of webpage copy, print material
language, and plays an active role in the company's online social media strategy. Maggie was admitted to the Illinois
Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. From
drafting complex commercial transactional documents to journalistic reporting, Maggie brings a unique blend of background,
experience, and perspective to IMS in both the area of law and writing.
IMS Expert Services is the premier
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