“The pretrial disclosure requirement of Rule 26(b)(4) applies only to facts and opinions that the expert ‘acquired or developed in anticipation of litigation or for trial.’” (Gubbins v. Hurson (2005) 885 A.2d 269, 277 citing Id.; Adkins v. Morton (1985) 494 A.2d 652, 657 [“[T]he crucial inquiry is whether the facts and opinions possessed by the expert were obtained for the specific purpose of preparing for the litigation in question; if so, Rule 26(b)(4) governs their discovery.”])
“The Rule imposes no obligation to disclose where the ‘information was not acquired in preparation for trial but rather because [the expert] was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.’” (Gubbins v. Hurson (2005) 885 A.2d 269, 277 citing Adkins, 494 A.2d at 657 [quoting Fed.R.Civ.P. 26(b)(4) advisory committee note (1970)]; see also Abbey v. Jackson (1984) 483 A.2d 330, 334-35.)
“Thus, Rule 26(b)(4) ‘focuses not on the status of the witness, but rather on the substance of the testimony.’” (Gubbins, id., citing Patel v. Gayes (1993) 984 F.2d 214, 218 [7th Cir.] [construing former Fed.R.Civ.P. 26(b)(4)].)
“‘Before any motion to compel discovery is filed, the affected parties or counsel must meet for a reasonable period of time in an effort to resolve the disputed matter.’” (Bussell v. Berkshire Associates (1993) 626 A.2d 22, 23 n.2 citing Super.Ct.Civ.R. 37(a).)
The courts of the District of Columbia “review the denial of a motion to compel discovery for abuse of discretion resulting in prejudice.” (Franco v. Dist. of Columbia, 39 A.3d 890, 896 [D.C. 2012] citing So v. 514 10th St. Assocs., L.P.,834 A.2d 910, 914 [D.C.2003].) “The trial court has broad discretion to weigh the factors in deciding whether discovery should be compelled.” (Franco, id. quoting Phelan v. City of Mount Rainier, 805 A.2d 930, 942–43 [D.C.2002].)
“[T]he primary purpose of Rule 26(b)(4) is to prevent unfair surprise and concomitant prejudice.” (Drs. Groover, Christie Merritt v. Burke, 917 A.2d 1110, 1116 [D.C. 2007] citing Gubbins, supra, 885 A.2d at 279.)
“As the District acknowledges, in some circumstances a treating physician can testify at trial without being formally designated as an expert witness subject to Rule 26(b)(4)'s discovery requirements.” (Folks v. Dist. of Columbia, 93 A.3d 681, 685 [D.C. 2014] citing e.g., Adkins v. Morton,494 A.2d 652, 657 [D.C.1985] [physician who treats patient and “obtains and develops his information and opinions in the course of his treatment” should be treated as ordinary witness rather than as expert witness subject to special discovery requirements of Rule 26(b)(4)).])
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