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opposing party in anticipation of litigation or preparation for
trial. Under that rule a party may discover opinions of such
nontestifying experts only upon "a showing of exceptional
circumstances under which it is impractical for the party seeking
discovery to obtain facts or opinions on the same subject by
other means."
Our Rules of Practice and Procedure do not contain a similar
limitation on the discovery of a nontestifying expert witness'
report. Respondent contends that this Court should adopt a
discovery rule similar to rule 26(b)(4)(B) to protect from
discovery the opinions and reports of experts not testifying at
trial. Respondent argues that petitioner’s discovery of the
expert report will unjustifiably further petitioner's trial
preparation at the Government's expense and will be inconsistent
with the doctrine of fairness upon which rule 26(b)(4)(B) is
based.
Rule 71(d)(1) provides for discovery relating to experts who
are to be called as witnesses at trial and requires that a party
intending to call such an expert answer interrogatories about the
expert or produce an expert report. Rule 71(d)(1) provides:
By means of written interrogatories in conformity with
this Rule, a party may require any other party (A) to
identify each person whom the other party expects to
call as an expert witness at the trial of the case,
giving the witness’ name, address, vocation or
occupation, and a statement of the witness’
qualifications, and (B) to state the subject matter and
the substance of the facts and opinions to which the
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Last modified: May 25, 2011