Facts
- Chiquita International (Chiquita) hired International Reefer Services, S.A. (International) to carry a large shipment of bananas from Ecuador to Germany aboard the M/V Bolero Reefer.
- Chiquita alleged that malfunctions in the vessel’s loading equipment (including the ship’s cranes) prevented the full shipment from being loaded.
- Approximately 43,000 boxes were left on the wharf and were disposed of rather than carried on the voyage.
- Chiquita also claimed that the bananas that did arrive in Germany were delivered in poor condition.
- After the voyage and in anticipation of litigation, Chiquita asked Joseph Winer, a marine surveyor, to examine the vessel and its loading gear after the ship arrived at its destination.
- Winer conducted his examination shortly after the ship docked and assembled a file relating to his work.
- Chiquita brought a maritime cargo-loss/cargo-damage action against International (and the vessel).
- In discovery, International sought to depose Winer and obtain his file.
- Chiquita objected, arguing Winer was a non-testifying expert retained for litigation preparation and thus generally protected from discovery under Federal Rule of Civil Procedure 26(b)(4)(B).
Issues
- Whether Winer should be treated as a non-testifying expert retained in anticipation of litigation (protected by Rule 26(b)(4)(B)) or as an ordinary witness subject to deposition and ordinary document discovery.
- If Winer was a non-testifying expert, whether International showed “exceptional circumstances” making it impracticable to obtain the same information by other means, so as to justify taking his deposition and obtaining his materials.
- Whether, even if Winer could not be deposed, International could still obtain production of limited materials from Winer’s file that did not reveal his observations or opinions.
Decision
- The court classified Winer as a non-testifying expert retained in connection with expected litigation, not a witness whose knowledge was acquired in the ordinary course of business.
- The court found International had not shown exceptional circumstances sufficient to compel Winer’s deposition.
- The court denied International’s request to depose Winer.
- The court ordered Chiquita to produce portions of Winer’s file that did not reflect Winer’s observations and opinions, while protecting evaluative and opinion material from discovery.
Legal Principles
- Under Federal Rule of Civil Procedure 26(b)(4)(B), a party generally may not discover facts known or opinions held by an expert retained or specially employed in anticipation of litigation who is not expected to testify at trial; discovery requires a showing of exceptional circumstances.
- In deciding whether a person is a protected non-testifying expert, the main distinction is not “fact” versus “opinion,” but whether the person’s information was obtained in the normal course of business or because the person was hired to make an evaluation for expected litigation.
- A witness can have first-hand observations and still fall within Rule 26(b)(4)(B) when those observations were made because the party retained the person to conduct a post-event technical examination for litigation preparation.
- Even when Rule 26(b)(4)(B) blocks a deposition, the court may order limited production of materials from the non-testifying expert’s file that do not reveal the expert’s observations or opinions, while shielding evaluative material.
Conclusion
In this maritime cargo dispute, the court treated Chiquita’s surveyor, Joseph Winer, as a non-testifying expert retained for litigation preparation, denied International’s attempt to depose him for lack of exceptional circumstances, and ordered only limited production of non-evaluative materials from Winer’s file.