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Non-Retained Experts: Leveraging the Opinions of Specialized Eye-Witnesses and Participants

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, May 20, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will review the advantages and challenges of using non-retained experts in complex litigation. The panel will discuss how to identify non-retained experts, when some or all of the disclosure and reporting requirements of Federal Rule of Civil Procedure 26 apply, how to prevent waiver of work product or privilege protections, and what happens if a witness is converted from a non-retained into a retained expert. The program will also consider the issues arising with consulting experts.


Using an in-house expert in litigation can save the client expenses and fees and the employee-expert will often be familiar with the relevant facts of the case. Nonetheless, the proposed expert may not be a good witness and communications with the non-retained expert are normally not privileged.

Non-retained experts include treating physicians, accountants, vendors, product testers, employees of customers, and others who have obtained knowledge of the facts first hand but have specialized expertise qualifying them to give an opinion. They are not subject to the same disclosure requirements as retained experts. Some courts have designated the same individual as both a fact and expert witness for trial.

Nevertheless, the non-retained expert can be transfigured into a retained expert under certain conditions, triggering full disclosure and compliance with Rule 26. Problems arise when this transformation is inadvertent and happens late in the case.

Listen as this experienced panel guides counsel through the benefits of using non-retained experts as well as the pitfalls to avoid.



  1. Benefits of non-retained experts
  2. Relevant rules governing disclosure and reports
  3. Work product and privilege protection
  4. How non-retained experts can become retained experts and consequences
  5. Best practices for using non-retained experts


The panel will review these and other issues:

  • What is the test for defining a non-retained expert?
  • Are disclosures and reports required from non-retained experts?
  • Are the conclusions of non-retained experts, not provided to any testifying experts, discoverable if used only to educate counsel?


Moore, Escum
Escum L. (Trey) Moore, III

Moore & Moore


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Shustak, Erwin
Erwin J. Shustak

Managing Partner
Shustak Reynolds & Partners

Mr. Shustak is the founder and Managing Partner of the Firm. He heads the Litigation and Arbitration Department, with...  |  Read More

Smith, Caroline
Caroline B. Smith

Butler Snow

Ms. Smith is a member of Butler Snow’s litigation department and practices within the Commercial Litigation...  |  Read More

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