Arizona Court of Appeals Division One Holds That a Party May Not Insulate an Expert from Discovery by Redesignating Him a Consultant.

A plaintiff disclosed a doctor as an expert witness and disclosed the expert’s preliminary affidavit.  The plaintiff later filed a notice redesignating the doctor as a consulting expert only.  The plaintiff moved for, and the Superior Court granted, a protective order barring the defendants from taking the doctor’s deposition or seeking other related discovery.  The Court of Appeals accepted special action jurisdiction to answer the question of whether an expert witness whose opinions have been disclosed may be shielded from discovery merely by redesignating him as a consulting expert.

Ariz. R. Civ. P. 26(b)(4) provides that a party generally may depose testifying experts, but generally may not depose consulting, non-testifying experts.  Arizona courts have held that a witness may not simultaneously occupy both statuses. 

After recognizing that federal courts have split on the issue, the Court adopted a “cat is out of the bag” approach: once an expert has disclosed his opinion, a party may not protect him from discovery merely by redesignating him as a consulting expert.  The Court emphasized that although the opposing party may depose the expert, the trial judge may in some circumstances restrict the use of such testimony at trial under Ariz. R. Evid. 403.  The Court also distinguished some Arizona cases holding that redesignations can, in certain circumstances, protect an expert from discovery, including cases involving the Redistricting Commission and when the expert has not yet disclosed his opinions.

Judge Swann authored the opinion; Judges Gemmill and Gould concurred.