Retained and Non-Retained Experts: Cases After 2010 Amendments to Rule 26(a)(2)

Mara Leventhal, a partner with Gregory P. Joseph Law Offices, writes that where an expert witness has some first-hand involvement in the underlying facts, recent case law suggests that such expert's designation as "retained" or as "non-retained" and subject to less onerous disclosures, will depend on the sometimes inconsistent application of various factors - including whether the expert opinions to be offered were formed before, during, after, or in anticipation of litigation - even after the 2010 amendments.

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