Sara Lee Corp. v. Kraft Foods, Inc., 2011 WL 1311900 (N.D. Ill. April 1, 2011)

Facts: Defendants retained a single expert as both a testifying expert for one survey and as a consulting expert for a second survey. Defendants also retained a testifying expert for the second survey for which it prepared a report and was deposed. Plaintiff brought a motion to compel when the expert refused to answer questions at his deposition about the second survey. The court ruled pursuant to newly amended Rule 26.


  1. Materials solely related to an expert’s role as a non-testifying expert are not discoverable unless there exists “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject matter by other means.” Fed.R.Civ.P. 26(b)(4)(D).
  2. Communications between the attorney and testifying expert are protected by the newly added work-product protection. Fed.R.Civ.P. 26(b)(4)(C). The work-product protection does not apply to communications that:
    1. relate to compensation for the expert’s study or testimony;
    2. identify facts or data the attorney provided and the expert considered in forming opinions; or
    3. identify assumptions that attorney provided and the expert relied on in forming opinions.

Communications receiving work-product protection are not discoverable unless the party seeking the materials “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”


  1. The requested materials related to the expert’s role as a consultant and were not discoverable. Plaintiff could not show “exceptional circumstances” because it obtained “facts or opinions on the same subject by other means.”
  2. Even if the expert were testifying, the materials were not discoverable because they did not relate to “compensation,” “facts or data,” or “assumptions provided by the attorney.” Further, Plaintiff could not show a “substantial need for the materials” and could obtain the materials “without undue hardship” by other means.

For Clients: Clients should know that the Federal Rules of Civil Procedure were amended to provide greater protection to attorney communications with testifying experts. As such, litigation costs should decline since clients will not have to bear the cost of two experts in some cases.

Access the full Sara Lee opinion here.