53. Should the court grant the hospital's motion to quash?

Federal Rule of Civil Procedure (FRCP) 26 requires parties to disclose certain information to other parties without waiting for a discovery request. Rule 26 requires parties to disclose all information «then reasonably available» that is not privileged or protected as work product.

Three types of disclosures are required: initial disclosures, disclosures of expert testimony, and pretrial disclosures. Parties are not excused from making their initial disclosures because another party has not made their initial disclosures.

Without waiting for a discovery request, a party must provide to other parties the names and contact information for individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses unless the use would be solely for impeachment.

A party must also disclose copies or descriptions of documents or other tangible things that are in the disclosing party's possession or control and that the disclosing party may use to support its claims or defenses unless the use would be solely for impeachment. These disclosures must be made within 14 days after the meeting of the parties required by Rule 26(f).

A party must also disclose to other parties the identities of expert witnesses expected to be used at trial. If the expert witness has been specially retained to provide expert testimony, the disclosure must be accompanied by a report prepared by the expert stating her qualifications, the opinions expressed, and the basis of those opinions. Otherwise, no report is required.

However, the party will need to disclose the identity of the expert, the subject matter on which the expert is expected to present evidence, and a summary of the facts and opinions to which the witness is expected to testify. This disclosure must be made at least 90 days before trial.

D is correct. A party may depose testifying experts who are expected to be called at trial. However, a party is not entitled to depose consulting experts; consulting experts are those who are retained in anticipation of litigation but who are not expected to testify at trial. See FRCP 26(b)(4)(D). Opinions of these witnesses would be considered to have been developed in anticipation of litigation; thus, disclosures from consulting experts are only discoverable upon a showing of exceptional circumstances under which it would be impracticable for the other party to obtain facts or opinions by other means.

Here, because the hospital only retained the research physician to work with its lawyers to prepare the hospital's defense of the lawsuit, but then decided not to call him as a witness, he was only consulted in anticipation of litigation.

Then, the patient wants to ask the physician about the research, but the physician isn't going to be a testifying expert witness (as he was only consulted in preparation), triggering the standard for discovery disclosures of consulting witnesses (consulting experts are those who are retained in anticipation of litigation but who are not expected to testify at trial and are only discoverable upon a showing of exceptional circumstances under which it would be impracticable for the other party to obtain facts or opinions by other means).

This means the patient's estate's motion should be quashed absent a showing that exceptional circumstances will prevent them from discovering the information by other means.

As an aside, the physician is not considered a lay witness testifying to personal knowledge because a lay witness must have personal knowledge about matters they're testifying to, whereas an expert witness has expertise on a matter, which does not require personal knowledge of the facts of the case. Calling a witness to testify about research findings (here, «laboratory research into diabetes and its effects on the human body») is inherently calling for expert witness testimony, but this witness was never called, only consulted.

A is incorrect. This choice is stating the general standard for discovery of a testifying expert. A party is entitled to disclosure of experts including their qualifications, their opinions to be expressed at trial, and the basis for those opinions when the expert is expected to testify at trial. Here, the physician will not be testifying for the hospital, so this standard does not apply.

B is incorrect. This choice is stating the standard for discovery in general. The discovery of material from a consulting expert requires a higher standard, as explained above.

C is incorrect. This is the correct conclusion, but incorrect legal reasoning. This choice states the standard for discovery of work product, which is discoverable only upon a showing of a substantial need and undue hardship in obtaining the material in an alternative way.

Here, the patient's estate seeks to obtain information regarding the physician's research prior to and after the patient's death. This was research conducted prior to and outside of the hospital's litigation. Therefore, it cannot be said that the physician's research qualifies as material produced in anticipation of litigation and thus would not qualify as work product. Instead, the appropriate standard would be that regarding a consulting expert's opinion.