D. Or. LR 26-8

Practice Tip

Use care when dealing with hybrid fact and expert witnesses, and in deciding whether to make the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) for "reporting experts" or the more limited disclosures required by Fed. R. Civ. P. 26(a)(2)(C) for "non-reporting experts."

In deciding whether a written report is required, the cases often examine how the witness's opinion was formed. For example, factors can include whether a treating physician formed her opinions during the course of treatment, whether she reviewed information provided by an attorney that had not been reviewed during the course of treatment, or whether the opinions went beyond the usual scope of a treating physician's testimony. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819-20, 826 (9th Cir. 2011).

One opinion in this District, under the facts of that case, stated that when experts are designated as non-reporting experts, the designation "serves to waive all applicable privileges and protections for items they considered that relate to the topic of their testimony," i.e., "the subject of their expert opinions." Pacificorp v. N.W. Pipeline GP, 879 F. Supp.2d 1171, 1213-14 (D. Or. 2012) (the opinion describes the witnesses as "non-retained experts"). Another court in the Ninth Circuit "decline[d] to hold that designating an individual as a non-reporting expert witness waives otherwise applicable privileges and protections in all cases, or even for all cases involving non-reporting employee expert witnesses," but the court did find a waiver in that "particular factual scenario." United States v. Sierra Pac. Indus., No. CIV S–09–2445 KJM EFB, 2011 WL 2119078, at *10 (E.D. Cal. May 26, 2011).