Expert Information Case: Thompson v. The Haskell Co.

(1994; Fl) [CB 447-448]

Facts: P had brought the suit against former employer. P claimed that as a result of sexual harassment by D, and was fired when she did not acquiesce to his advances, she suffered depression as a result. 10 days after she was fired, she was examined by Dr. Lucas. Now during the lawsuit, the Ds want a copy of that report. Plaintiff then moves for a protective order on the report, claiming it is not discoverable under Rule 26(b)(4) - non-testifying witness. Issue: Holding: Whether you can get discovery from a non-testifying witness. Yes, under exceptional circumstances. P's motion is denied.

Reasoning: Court says even if Rule 26(b)(4) applies, you can get discovery from a non-testifying witness under exceptional circumstances. The defendant wants Dr. Lucas’s exam because it was very timely (10 days after her termination). If her emotional state is the result of having been fired, then you would think it would show up in this report because she files her complaint way, way later. So the defendant’s lawyer wants to argue that this report will have evidence related to being fired. If the report doesn’t mention being fired, then she probably was depressed for some other reason. The court finds the report discoverable and orders it produced.