Kendall Lake Towers Condominium Association, Inc., a Florida corporation v. Pacific Insurance Company, Limited
DISCOVERY ORDER. Signed by Magistrate Judge Jonathan Goodman on 11/8/2011. (eg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-24310-CIV-GRAHAM/GOODMAN
KENDALL LAKES TOWERS
CONDOMINIUM ASSOCIATION, INC.,
PACIFIC INSURANCE COMPANY,
This matter is before the Court following a discovery hearing held on October 28,
2011. At the hearing, Plaintiff requested that third-party consultants EFI, JS Held, and
CJW produce, inter alia, their opinions relating to the property damage at issue in this
case and a privilege log for unproduced materials. Plaintiff filed a post-hearing list of
authorities in support of its position and the Defendant filed supplemental authorities in
response. The issues are now ripe.
Federal Rule of Civil Procedure 26(b)(4)(D) provides that
Ordinarily, a party may not, by interrogatories or deposition, discover
facts known or opinions held by an expert who has been retained or
specially employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness at trial.
But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable
for the party to obtain facts or opinions on the same subject by other
Here, Plaintiff relies on the exceptional circumstances exception to justify
discovery of the Defendant’s consultant’s opinions.
The party seeking disclosure under Rule 26(b)(4)(D)(ii) has the burden of
demonstrating exceptional circumstances. Hoover v. U.S. Dept. of the Interior, 611 F.2d
1132, 1142 n.13 (5th Cir. 1980) (interpreting former Rule 26(b)(4)(B), the predecessor to
Rule 26(b)(4)(D)). Courts have generally found that exceptional circumstances may be
demonstrated by showing that (1) “the object or condition observed by the non-testifying
expert is no longer observable by an expert of the party seeking discovery,” or (2) “it is
possible to replicate expert discovery on a contested issue, but the costs would be
judicially prohibitive.” Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 175
F.R.D. 34, 44 (S.D.N.Y. 1997); see also Cooper v. Meridian Yachts, Ltd., No. 06-61630,
2008 U.S. Dist. LEXIS 41902 (S.D. Fla. May 28, 2008) (exceptional circumstances
found where the movant would never have the opportunity to examine the condition
because the non-movant’s experts deconstructed it as part of their examination).
The Court finds that Plaintiff has failed to demonstrate exceptional circumstances
warranting the discovery of the third-party consultants’ opinion.
In response to
Plaintiff’s contention that these consultants were the first on the scene to observe the
relevant conditions, the Court already ordered the third parties to produce photographs
and other documents reflecting objective fact-finding observations and measurements. In
addition, Plaintiff retained its own experts, who have also inspected the site.
Consequently, the Court will not order any additional production from the Defendant’s
None of the authorities that Plaintiff submitted address the issue of the privilege
log. The Defendant, however, calls the Court’s attention to Rule 26(b)(5)(A), which
requires that parties provide what is commonly known as a privilege log for information
that is otherwise discoverable. Because Rule 26(b)(4)(D) is explicit that non-testifying
experts’ opinions are not ordinarily discoverable, it follows that no privilege log is
required for information that they withhold. Accordingly, the Court will not require the
third party experts to produce privilege logs.
DONE AND ORDERED in Chambers, at Miami, Florida, November 8th, 2011.
Copies furnished to:
All counsel of record
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