Overcoming Consulting (Non-Testifying) Expert Privilege
Retained experts play a role in most forms of litigation. Many practitioners are familiar with the general rules regarding discoverability of information held by experts: if they will testify at trial, their opinions and supporting facts are discoverable; but if they won’t testify at trial, often their opinions and files are asserted to be protected work product and not discoverable. What happens when non-testifying experts have critical information that could determine the outcome of a case, and the party asserts that their expert’s file is protected under the work product doctrine?
In Florida, this situation is governed by Rule 1.280(b)(5)(B) which provides:
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 1.360(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.
In other words, a party must demonstrate “exceptional circumstances” in order to pierce the work product privilege and gain access to another party’s non-testifying expert’s file. However, what constitutes “exceptional circumstances” can be somewhat elusive. One of the most visible Florida cases dealing with exceptional circumstances was Wackenhut Corporation v. Crant-Heisz Enterprises, Inc., 451 So. 2d 900 (Fla. 2d DCA 1984). There, an expert was hired to provide an opinion as to the cause of a warehouse fire, but would not testify at trial. Id. at 901. While there were other investigators that inspected the warehouse, he was the only individual that had photographs of the area at issue before it was replaced. Id. The Second District only allowed access to the expert’s photographs, since exceptional circumstances didn’t permit him to be deposed because other testifying witnesses were in the same position to gather the information that was gathered by the expert. Id. at 902-03.
The Wackenhut case exemplifies the remainder of the standard which practitioners will have to meet, explicit in the latter portion of the Rule, that it is “impracticable for [them] to obtain facts or opinions on the same subject by other means.” Fla. R. Civ. P. 1.280(b)(5)(B). For example, when “[r]espondents have had access to the building, with every opportunity to take their own photographs and make their own notes,” exceptional circumstances was not found. Centex Rooney Const. Co., Inc. v. SE/Broward Joint Venture, 697 So. 2d 987, 988 (Fla. 4th DCA 1997). Or when a member of a fire investigation team was an electrical inspector, their investigation was documented in detail, and they did not perform any “maintenance or repair of the damaged facilities,” exceptional circumstances needed to depose a party’s non-testifying electrical expert was not found. Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258, 1260 (Fla. 3d DCA 1989). But when necessary to protect landowners’ rights from condemnation proceedings when an appraiser was retained on a prior occasion to evaluate the landowner’s parcel, exceptional circumstances could be demonstrated. Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938, 939 (Fla. 5th DCA 1981).
Overall, there are not many Florida cases that discuss the requirements of Rule 1.280(b)(5)(B). However, the Federal Rules have an almost identical requirement that may be of use to practitioners looking for case examples. Ruiz By & Through Ruiz v. Brea, 489 So. 2d 1136, 1137 (Fla. 3d DCA 1986). Rule 26(b)(4)(D) states that information and opinions held by “experts employed only for trial preparation” cannot be obtained absent “showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(D). Under this Rule, courts have found information discoverable when a party’s experts were the first to examine an allegedly malfunctioning lift and “manipulated and disassembled components” of the lift. Cooper v. Meridian Yachts, Ltd., 06-61630-CIV, 2008 WL 2229552, at *5 (S.D. Fla. May 28, 2008). Federal courts have also adopted a two-part standard under this Rule that would support a finding of exceptional circumstances: “(1) the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery; or (2) although it is possible to replicate expert discovery on a contested issue, the cost of doing so is ‘judicially prohibitive.’” Adinolfe v. United Techs. Corp., 10-CV-80840, 2015 WL 11254706, at *2 (S.D. Fla. Sept. 17, 2015).
Some additional principles emerge from these cases that are worth noting:
- Courts have often held that proof must be in the form of evidence rather than just assertions by counsel. Taylor v. Penske Truck Leasing Corp., 975 So. 2d 588, 589 (Fla. 1st DCA 2008); CSX Transp., Inc. v. Carpenter, 725 So. 2d 434, 435 (Fla. 2d DCA 1999).
- An in camera inspection may be required in order to determine whether the information is discoverable. State Farm Florida Ins. Co. v. Marascuillo, 161 So. 3d 493, 498 (Fla. 5th DCA 2014).
- Parties that fail to explicitly argue and offer proof of exceptional circumstances when accessing another party’s non-testifying expert may have their favorable order reversed on appeal. Myron By & Through Brock v. Doctors Gen., Ltd., 573 So. 2d 34, 35 (Fla. 4th DCA 1990); Bailey v. Miami-Dade County, 186 So. 3d 1044, 1046 (Fla. 3d DCA 2015).
- If an expert is disclosed by a party as a testifying expert but later withdrawn, Florida courts have consistently held it does not operate as a waiver of the protections under Rule 1.280. Rocca v. Rones, 125 So. 3d 370, 372 (Fla. 3d DCA 2013); Broward Cty. v. Cento, 611 So. 2d 1339, 1340 (Fla. 4th DCA 1993).
- Depending on their role and when they were retained, facts known and information held by an expert may be considered lay witness testimony, especially if the expert obtained the information prior to being retained by a party. Dive Bimini, Inc. v. Roberts, 750 So. 2d 728 (Fla. 1st DCA 2000); Gables Condo. & Club Ass’n, Inc. v. Empire Indem. Ins. Co., 18-23659-CIV, 2019 WL 1317824, at *7 (S.D. Fla. Mar. 22, 2019).
While the key principles are evident, the circumstances of each case varies. Therefore, no single case may be availing to every practitioner. Prior to seeking to compel the disclosure of facts known or opinions held by another party’s non-testifying expert, practitioners should make use of other tools of discovery at their disposal, such as subpoenas, depositions, and written discovery in order to prove that it is extraordinarily difficult or “impracticable” to obtain the information by other means.
 Prior to 2012, this was Rule 1.280(b)(3)(B). See State Farm Florida Ins. Co. v. Marascuillo, 161 So. 3d 493, 498 (Fla. 5th DCA 2014).