In Szulik v. State Street Bank & Trust Co., No. 12-10018-NMG (D. Mass. Aug. 11, 2014), the court held that a party could not subpoena from a non-testifying expert facts known or opinions held by the expert absent exceptional circumstances.  Plaintiff engaged BDO as a non-testifying expert to provide professional consulting services and assistance in litigation.  In this capacity, BDO obtained documents from third parties.  Defendant subpoenaed BDO, seeking these third party documents.  Citing Fed. R. Civ. P. 26(b)(4)(D), the court denied defendant’s motion to compel production.  Rule 26(b(4)(B) provides protection for non-testifying experts that is distinct from the attorney-client privilege and the work product doctrine.  In the absence of “exceptional circumstances,” the rule “protects both facts known and opinions held by a non-testifying expert.”  The court noted, however, that the rule does not prevent a party from seeking “to obtain the same specific facts from other sources.”