ILC Peripherals Leasing Corp. v. International Business Machines Corp.

This matter is before the court on IBM’s motion for production of documents from Memorex’s expert witnesses. IBM asserts that it needs these documents to fairly prepare for cross-examination, and to fairly evaluate Memorex’s revised damage claims. Memorex interposes numerous objections in its opposition, but these boil down to its concern over the breadth of the IBM requests.

In an effort to deal with the problem of expert discovery, subsection (4) was added to Rule 26(b) of the Federal Rules of Civil Procedure in 1970. It provides:

At the outset, the court wishes to make several observations about the scope of this part of the rule. First, it applies only to facts and opinions that are acquired or developed in anticipation of litigation or for trial. Thus, other facts and opinions are governed by the general discovery provision in Rule 26(b)(1). In any case, the facts and opinions must be relevant to the subject matter involved in the pending action as that term is defined in Rule 26(b)(1). Second, this part of the rule only covers *41 experts who will testify at trial. Experts who are retained or specially employed in anticipation of litigation or preparation for trial are…