When is the opinion of an expert consulted in anticipation of litigation discoverable?

The opinion of an expert consulted in anticipation of litigation is considered discoverable if that party intends to call the expert as a trial witness. This is because disclosure of expert testimony is necessary for the opposing party to adequately prepare for trial and to understand the basis of the expert’s opinions. When a party announces its intent to call an expert at trial, the opposing party has the right to discover the opinions held by that expert, as well as the facts and data supporting those opinions.

In contrast, if an expert was informally consulted or designated solely as a consulting expert, their opinions and communications are typically protected from discovery unless the consulting expert is designated as a trial witness. Likewise, the mere expectation of a written report does not guarantee that the expert’s opinions will be discoverable; it must be tied to the expert being called as a witness. Thus, the option regarding the intention to call the expert directly aligns with the rules governing expert discovery and provides the necessary context for understanding the relevance and discoverability of expert opinions in the litigation process.