Discovery of Retained Nontestifying Experts’ Identities Under the Federal Rules of Civil Procedure

This Note proposes an approach to the problem of identification of rule 26(b)(4)(B) experts that differs from both of the approaches taken in the reported opinions. 9 Part I analyzes the language of rule 26(b) and rejects the majority approach. As a matter of statutory construction, rule 26(b )( 4)(B) governs the disclosure of the identity of nontestifying experts retained by a party in preparation for trial. Part II examines the underlying purposes of rules 26(b)(l) and 26(b)(4)(B) – to ensure adequate pretrial disclosure and to prevent unfairness in adversarial competition – and suggests that both interests may be accommodated. These interests are appropriately balanced by requiring a party to show “exceptional circumstances” to discover the name and address of a rule 26(b)(4)(B) expert, but allowing routine discovery by interrogatory of such an expert’s specialty or field of expertise and a brief description of the services that the expert performed in anticipation of litigation.