## Facts

- Multi-party banking litigation arose from financing transactions involving AroChem International, Inc.
- Arthur Andersen & Co. was retained by certain banks as a non-testifying consulting expert and performed audit/consulting work connected to AroChem’s finances.
- Bank Paribas (Suisse) S.A. sought to depose Andersen about Andersen’s work, knowledge, and communications relevant to AroChem.
- Andersen and several banks opposed the deposition and sought a protective order, invoking Federal Rule of Civil Procedure 26(b)(4)(B)’s protection for non-testifying experts.
- A magistrate judge ordered Andersen’s deposition, finding “exceptional circumstances,” limiting the deposition to 96 specified subjects, and requiring reasonable fees and costs for Andersen’s witnesses.
- The objecting parties sought district-court review of the magistrate judge’s nondispositive discovery order under 28 U.S.C. § 636(b)(1)(A).

## Issues

1. Whether the magistrate judge’s order compelling deposition discovery from a non-testifying consulting expert satisfied Rule 26(b)(4)(B)’s “exceptional circumstances” requirement.
2. Whether the magistrate judge’s denial of a broad protective order, while imposing subject-matter limits and fee protections, was clearly erroneous or contrary to law under 28 U.S.C. § 636(b)(1)(A).

## Decision

- The district court overruled the objections and affirmed the magistrate judge’s discovery order.
- The court held that the record supported the magistrate judge’s conclusion that “exceptional circumstances” existed under Rule 26(b)(4)(B), permitting Andersen’s deposition.
- The court rejected the argument that the order would generally deter experts from serving as consulting experts, given Andersen’s unusual role and the case-specific circumstances.
- The court credited the safeguards imposed: limiting topics to the 96 identified subjects and requiring payment of Andersen’s reasonable fees and costs.

## Legal Principles

- Discovery from a non-testifying expert retained in anticipation of litigation is permitted only on a showing of “exceptional circumstances” making it impracticable to obtain the same facts or opinions by other means. Fed. R. Civ. P. 26(b)(4)(B).
- A district court reviews a magistrate judge’s nondispositive discovery order under a deferential standard and may set it aside only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A).
- Even when exceptional circumstances justify discovery from a consulting expert, courts may manage burden and fairness by limiting the scope of examination and requiring payment of the expert’s reasonable fees and costs.

## Conclusion

The court affirmed compelled deposition discovery from a non-testifying consulting expert because the circumstances were exceptional under Rule 26(b)(4)(B), and the magistrate judge reasonably balanced the requesting party’s need against burden through topic limits and cost protections.


Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 175 F.R.D. 34 (S.D.N.Y. 1997)