Home › Case briefs › Civil Procedure

Perry v. W. S. Darley & Co.

United States District Court · Civil Procedure

Civil ProcedureDiscoveryExpert WitnessesRule 26(b)(4)(B)Rule 26(e)expert discoverynon-testifying expertsexceptional circumstances

Facts

Plaintiff Robert Perry, a volunteer fireman, sought damages for injuries allegedly sustained when he was struck by a fire truck while attempting to activate a pump manufactured and installed by the defendant. Shortly after the accident, certain experts examined the truck and pump. During the deposition of Ward Johnson, an employee of the fire department's workers' compensation carrier, defendant sought the names of those experts. Plaintiffs refused, asserting privilege and work-product protection, and argued that the experts were not necessarily experts expected to testify at trial.

Issue

Whether the defendant may compel disclosure of the identities of experts who examined the fire truck shortly after the accident when there has been no showing that the experts will testify at trial, no exceptional circumstances have been shown, and there is no evidence that the experts were actors or viewers of the underlying occurrence.

Rule

Under Rule 26(b)(4), discovery concerning experts retained in anticipation of litigation or preparation for trial and not expected to be called at trial is subject to a more rigorous standard than discovery from ordinary witnesses. Absent a showing of exceptional circumstances, and absent evidence that the expert was an actor or viewer with respect to the transactions or occurrences at issue, the court will not compel disclosure of such experts' identities merely because they examined the subject matter shortly after the event.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products-liability suit filed in Phoenix, Lena Ortiz claims a warehouse lift malfunctioned and injured her. Two days after the incident, her lawyer hired mechanical engineers from Sonoran Forensic Group to inspect the lift, but Lena does not plan to call them at trial, and the manufacturer still has full access to the lift for its own inspection.

If the manufacturer moves to compel disclosure of the engineers' names solely because they possess relevant information about the lift's condition, how should the court rule?

Explanation. The majority held that Rule 26(b)(4) imposes a more rigorous standard for discovery from experts retained in anticipation of litigation and not expected to testify at trial. Without exceptional circumstances making equivalent discovery impracticable, and without evidence the experts were actors or viewers of the occurrence itself, the court should not compel disclosure of their identities merely because they examined the object soon after the event. (Derived from Perry v. W. S. Darley & Co. (n.d.).)