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ARTICLE · 11 OCTOBER 2019

Expert Disclosures: Navigating The Distinction Between Retained And Non-Retained Experts

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In 2010, Fed. R. Civ. P. 26 was amended to require full expert reports and other disclosures for retained expert witnesses, but only summaries of anticipated opinion testimony of non-retained experts.

United StatesLitigation, Mediation & Arbitration
David Johnson
David Johnson
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In 2010, Fed. R. Civ. P. 26 was amended to require full expert reports and other disclosures for retained expert witnesses, but only summaries of anticipated opinion testimony of non-retained experts. During the ensuing nine years, courts have weighed in on the distinctions between retained experts and non-retained experts. Even still, the distinctions are murky.

Under Fed. R. Civ. P. 26(a)(2)(B), a full expert report is required "if the witness is one retained or specially employed to provide expert testimony in the case." If the expert witness is non-retained then, under Rule 26(a)(2)(C), the party must disclose only "a summary of the facts and opinions to which the witness is expected to testify." According to the Advisory Committee, "[f]requent examples [of non-retained expert witnesses] include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony."1

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