A Proposed Amendment to Rule 26(b)(4)(B): The Expert Twice Retained

This article will focus on whether the hiring of the free agent as a non-trial expert, in order to conceal information from other parties to the litigation, is in keeping with the underlying goals and values of present discovery practice. Part I of this note discusses the discoverability of experts in general, then examines the various rationales underlying the so-called unfairness doctrine supporting the trial/non-trial expert distinction. Part II presents the case for divergent treatment of the free agent and the regularly retained expert. Subpart A of that section will explain the lack of judicial scrutiny in this area, while Subpart B will explore the application of the present trial/non-trial expert discovery distinction to the free agent expert. The analysis in Part II concludes that the existing discovery rules should be modified to discourage the hiring of experts to conceal information. This modification of present discovery is suggested in Part III as an amendment to Rule 26, which presently governs the discovery of experts. Both the analysis of and the proposed amendment to the Federal Rule are equally applicable to many state discovery rules.