Is a Site Inspection Fact or Expert Discovery?

Occasionally I encounter a case with a discovery schedule that stages discovery, often in more complex cases.  “Fact” discovery will be first, followed by “expert” discovery.  Ruiz-Bueno v. Scott had such an order.[1]  The plaintiffs’ expert wanted to inspect the relevant areas in the jail that was the focus of the lawsuit.  Normally this would be a standard and permissible request.  However, here the defendants argued the request came after the close of fact discovery and was consequently impermissible.  So, is an expert inspection fact or expert discovery?

The scheduling order neither defined nor distinguished the concepts.  “There are at least two possible interpretations: first, that the use of the phrase ‘expert discovery’ means discovery from experts – such as obtaining their documents and taking their depositions; and, second, that it means any discovery designed to aid experts in rendering their opinions.”  Cases from the federal Court of Claims shed light on the issue.  Sparton Corp. v. United States stated distinguishing the two types of discovery allows “the parties to investigate, completely, all ‘facts’ before the parties proceeded to expert discovery.”[2]  Arkansas Game & Fish Comm’n v. United States added that “expert discovery will be carried out through mandatory disclosure of the reports of experts expected to testify at trial, and through interrogatories or depositions ….”[3]

Applying these two cases, and several others, the court concluded “site visits are fact discovery just as much as are document productions and depositions of fact witnesses, and must be requested during the fact discovery period.”  As the request for the inspection did not come until after the fact discovery period closed, the inspection was impermissible.

[1] No. 2:12-cv-0809, 2014 U.S. Dist. LEXIS 17919 (S.D. Ohio Feb. 12, 2014).
[2] 77 Fed.Cl. 10 (2007) (quoting Shell Petroleum, Inc. v. United States, 46 Fed.Cl. 583, 584 (2000)).
[3] 74 Fed.Cl. 426, 429-30 (2006).