LANCE M. AFRICK, United States District Judge

On March 21, 1998, plaintiff, Barbara Kiser, was driving her 1996 Buick Regal when she was struck from behind by a 1997 Ford 6000 pickup truck driven by David Courtney. Plaintiff claims that the impact from the collision caused her seat to "recline, thereby causing and/or enhancing an injury to [plaintiff's] lower back." Plaintiff had not yet filed her lawsuit when she notified defendant, General Motors Corporation (GMC), of her intent to pursue a product liability claim.

In April 1998, before the lawsuit was filed, plaintiff notified GMC that she intended to have Clarke Gernon (Gernon), plaintiffs expert, inspect the subject vehicle. GMC sent Gerald Confer (Confer), a product analysis engineer, to attend the inspection which was held on May 14, 1998.

During the inspection, both parties' experts removed the seat from the vehicle, took the seat apart, and photographed the parts. The experts documented the inspection with a series of notes. A copy of Confer's report and photographs was given to plaintiff.

On December 11, 1998, plaintiff filed this lawsuit naming GMC as the sole defendant. Plaintiff contacted defendant sometime in January or February of 2000 in order to schedule Confer's deposition. In a letter dated February 29, 2000, defendant responded that Confer should not be deposed because Confer will not be a testifying witness at trial and he will not be providing expert testimony.

In a May 23, 2000 letter, plaintiff notified defendant that plaintiff's expert was "going to proceed with destructive testing on the recliner mechanism" of the driver's seat. Defendant responded that prior to any destructive testing, it needed to provide its testifying experts with an opportunity to inspect the seat and components at issue. In a letter dated June 6, 2000, plaintiff refused to make the seat available for the defense experts' inspection prior to the destructive testing. The letter, referencing Confer's inspection, stated that defendant already had "the opportunity to inspect, in detail, the seat and its component parts."

On June 27, 2000, defendant filed a motion for protective order which sought to prevent the destructive testing of the seat and the relevant component parts prior to defense inspection. On June 30, 2000, plaintiff filed a motion to compel the taking of Confer's deposition.

The Court first considers whether Confer should be compelled to testify. Federal Rule of Civil Procedure Rule 26(b)(4)(B) states:

A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by. another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Plaintiff argues that Rule 26(b)(4)(B) is inapplicable because Confer has never been classified as an expert by defendant and because Rule 26 (b)(4)(B) only applies to experts, not employees of defendants. Defendant asserts that Confer, a GMC in|house engineer, was "specifically employed [by defendant] to provide preliminary technical analysis as a consulting expert on product liability claims and lawsuits asserted against [defendant.]" According to defendant, Confer was not designated as a testifying expert. Furthermore, defendant avers that [it] "routinely sends its consulting experts to perform a preliminary assessment of the product's condition so that [it] may determine the initial direction in which the case should proceed as well as the appropriate testifying experts to retain."

Plaintiff's argues that since Confer has not been designated as an expert, he is just another employee of GMC subject to deposition. It is clear that Confer has specialized knowledge which led to his employment by the defendant. Confer brought his technical background to the inspection because it would provide a factual basis for other testifying experts' opinion(s). Confer does not forfeit his expert status because he personally examined the vehicle and learned facts during the inspection.See Coastal Towing. Inc.. v. Novarco. Ltd., 1999 WL 970357 (E.D.La. 1999); Lambert v. Chase Manhattan, 175 F.R.D. 34, (S.D.N.Y. 1997);Chiquita Int'l Ltd. v. M/V Bolero Reefer, 1994 WL 177785 (S.D.N.Y. 1994). Confer was hired to make preliminary findings in connection with expected litigation and he is, therefore, clearly within the ambit of Rule 26(b)(4)(B).

Although the Court recognizes that not all in-house experts fall within the parameters of the retained or specially employed language of Rule 26 (b)(4)(B), whether an in-house expert is retained or specially employed must be decided on a case-by-case basis. In Re Shell Oil Refinery v. Shell Oil Co. 132 F.R.D. 437, 441-442 (E.D.La. 1990), clarified by 134 F.R.D. 148 (E.D.La. 1990). Prior to instituting this lawsuit, plaintiff contacted defendant in order to advise GMC that she was having an expert inspect the vehicle. Defendant knew of plaintiff's intent to pursue a products liability claim..The May 14, 1998, inspection of the vehicle was coordinated by plaintiff's counsel and the GMC's claims division. Such inspection was necessary to provide GMC's testifying experts with the data needed to formulate expert opinions. It is of no moment that Confer has not been assigned to work exclusively on this litigation or that he did not receive additional compensation for work on this case.See In Re Shell Refinery at 442. Confer was not merely conducting normal business activities. He was specifically employed for litigation assistance. See In Re Shell Oil Refinery v. Shell Oil Co., 134 F.R.D. 148, 149-50 (E.D.La. 1990). The Court concludes that Confer is an in-house expert retained or specially employed within the parameters of Rule 26(b)(4)(B).

Having concluded that Confer is an expert retained or specially employed in anticipation of litigation or preparation for trial, the Court must next determine whether exceptional circumstances exist which would permit discovery. The facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances. In Re Shell Oil Refinery, at 440. A party seeking to show exceptional circumstances under Rule 26 (b)(4)(B), carries a heavy burden. In Re Shell Refinery, at 442. The exceptional circumstances requirement has been interpreted by the courts to mean an inability to obtain equivalent information from other sources. Id. (citations omitted).

Plaintiff seeks the deposition testimony of Confer to question him regarding the significance of his findings, his opinions, and the observations that he made. However, plaintiff's expert was present during the entire inspection. Plaintiff also has copies of Confer's report as well as the photographs taken by him. Plaintiff may depose any experts who are expected to testify. The Court concludes that plaintiff has the ability to obtain equivalent information from other sources and, therefore, plaintiff has not demonstrated exceptional circumstances necessary to permit discovery.

Plaintiff further argues that defendant has waived the consulting expert privilege because Confer's preliminary report was produced to her. Defendant asserts that it was required to produce this report because its testifying experts have reviewed Confer's photographs and preliminary report. Federal Rule of Civil Procedure 26(a)(2)(B) requires production of all data or other information considered by a testifying expert in forming his opinions. The Court finds that providing such information did not amount to a waiver of any privilege as defendant was obligated to produce such information. Defendant need not comply with the Federal Rules at the peril of waiving its rights under the Rules.

Next, the Court considers whether defendant is entitled to inspect the seat and its component parts before destructive testing occurs. Here, the defendant is not challenging the decision to conduct destructive testing of the seat. Rather, the defendant wants to ensure that it has an opportunity to inspect the seat prior to any destructive testing that occurs and it requests permission to be present during such testing. Such a request is not unreasonable and this Court will permit the same prior to any destructive testing.

Defendant also asks the Court to prohibit plaintiff from charging it the fee that plaintiff's expert will charge for being present at the inspection. Plaintiff's expert is currently in possession of the seat and its component parts. Plaintiff states that "Gernon will charge [defendant] for any time he spends unpacking the seat and/or waiting for [defendant's] expert to conclude his inspection." Plaintiff argues that the presence of Gernon is necessary to ensure the preservation of the evidence. Plaintiff further argues that since plaintiff has already paid Gernon for his presence at the first inspection, then a second inspection requested by defendant should not result in a financial burden to plaintiff.

F.R.C.P. 26(b)(4)(C) provides in pertinent part:

Unless manifest injustice would result, (I) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery

under this subdivision[.]

In this case, the defendant is not presently seeking discovery of plaintiff's expert. Plaintiff's expert may choose to be or not be present. Such a choice is left to plaintiff. Defendant will not be responsible for the costs that plaintiff will incur in having her expert present at defendant's inspection.

Accordingly,

IT IS ORDERED that plaintiffs Motion to Compel the deposition of Gerald Confer is hereby DENIED.

IT IS FURTHER ORDERED that defendant's Motion for a Protective Order is hereby GRANTED to the extent that:

(1) defendant's expert(s) are allowed to be present at the destructive testing.

(2) defendant's expert(s) are to be provided the opportunity to inspect the seat and component parts prior to destructive testing; and

(3) all parties are to bear their respective costs.