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Federal Rules of Civil Procedure (FRCP) QUESTION #5665
Question 1
A party wishes to depose an expert witness who has been retained by the opposing side for trial preparation but is not expected to be called as a witness at trial. Under Rule 26(b)(4)(D), when is this allowed?
  • Always, as long as the party pays the expert's reasonable fee.
  • Only upon a showing of 'substantial need' and 'undue hardship'.
  • Only as provided in Rule 35(b) or on showing 'exceptional circumstances' where it is impracticable to obtain facts or opinions by other means.✔️
  • Never; non-testifying experts are completely protected from discovery.
Correct Answer Explanation
Rule 26(b)(4)(D) provides that a party may not discover facts known or opinions held by a non-testifying expert except as provided in Rule 35(b) or on showing exceptional circumstances.