Under what circumstances can a party take the deposition of a non-testifying expert?

A party can take the deposition of a non-testifying expert under specific circumstances, particularly when they can show exceptional circumstances. This requirement serves to strike a balance between the need for discovery and the protections afforded to non-testifying experts, who are typically consulted to provide opinions or inform trial strategy without being involved in the litigation directly.

Exceptional circumstances imply that the party must demonstrate a compelling need for the deposition, which often includes showing that the information is not obtainable from another source. The principle behind this standard is to protect the work product and prevent undue harassment of experts who play a critical role in advising counsel outside the context of court.

In contrast, taking the deposition at any point in litigation is too broad and does not reflect the limitation imposed by the exceptional circumstances standard. Furthermore, while judges do have the authority to grant special permissions, this does not specifically cover the standard required for non-testifying experts. Finally, the simple fact that the expert is not a party to the case does not justify taking their deposition without meeting the criteria of exceptional circumstances, as non-party status alone does not negate the protections afforded to experts.