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In Re Shell Oil Refinery

    Brief Fact Summary. During pretrial discovery, the Plaintiff moved for discovery of the Defendant’s experts.

    Synopsis of Rule of Law. The facts known and opinions held by non-testifying experts,
    who are retained in anticipation of litigation are subject to discovery only in exceptional
    circumstances.


    Facts. The Catalytic Cracking Unit (CCU) at the Shell Oil Refinery (Defendant)
    exploded. The first of several suits were certified as a class action. The day after the
    explosion, the parties entered an agreement giving Plaintiff’s legal committee (PLC) and
    its experts access to the CCU to inspect, measure and photograph. Following the
    agreement, Defendant preserved all materials tagged by PLC. During the course of the
    litigation, Plaintiffs field several motions seeking expert discovery, specifically the
    identities of Defendant’s experts and results of tests conducted by Defendant. The district
    court held that the Plaintiff cannot have the information unless the expert is going to
    testify.

    Issue. Whether a party may acquire facts and opinions held by non-testifying experts
    who are retained in anticipation of litigation?

    Held. No. Plaintiff’s request for discovery is denied.

    Plaintiffs’ attempt to obtain discovery from experts expected to be called at
    trial was premature. Typically, those who will testify cannot be identified
    until the later stages of litigation.
    Facts and opinions of non-testifying experts in preparation of trial are only
    discoverable in exceptional circumstances. Plaintiff contends that two of
    the non-testifying experts should be treated as ordinary witnesses because
    they are in-house experts who would have performed the tests as part of
    their regular duties. In the alternative, Plaintiff argues that if the two
    experts were retained specially in anticipation of litigation, then facts and
    opinions are discoverable due to exceptional circumstances, which require
    great expense to duplicate the tests. The two experts performed their
    investigation and their study of the explosion was in anticipation of
    litigation. The determination whether an in-house expert falls within the
    parameters of the retained must be on a case-by-case basis. In this case,
    the court finds that the experts were retained by Defendant in anticipation
    of trial. Defendant’s attorneys specifically engaged the experts to assist
    them in defending the lawsuit. The two experts investigated and studied
    the cause of the explosion and prepared preliminary reports. Their usual
    duties do not include litigation assistance. Since the experts were retained

    or specially employed in anticipation of trial, the court must look at
    whether exceptional circumstances exist to permit discovery. The
    Plaintiffs want Defendant’s test results to avoid expense of conducting
    their own tests. Plaintiffs have failed to show exceptional circumstances,
    thus Plaintiffs request for discovery is denied.


    Discussion. Non-testifying experts are obtained by counsel when the lawyer needs the
    assistance of an expert in the preparation of trial. In other words, counsel is hiring
    someone to assist them in the development of the legal and factual theories for the case.
    Here, Plaintiff failed to show exceptional circumstances, which would permit the
    discovery of Defendant’s experts.


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