Where courts have reached the opposing conclusion, they have tended to rely upon the district court's holding in Marsh. 141 F.R.D. at 432 (concluding “Rule 26(b)(4) remains a limitation on the right of access by an opposing party to the evidence of experts who have been retained to testify in the case, and that the discovery of the facts and opinions of those experts cannot obtain solely under Rule 45”); see also Spencer v. Greenwald, 2022 WL 2180052, at *3 (D. Idaho June 15, 2022); Westchester Surplus Lines Ins. Co.2017 WL 2313288, at *2; Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd. P'ship, 154 F.R.D. 202, 210 (N.D. Ind. 1993). Plaintiff likewise relies on Marsh and its progeny in his Motion to Quash. Doc. [165] at 3-4.

Under the Federal Rules, “an expert witness is heavily protected from discovery.” Spencer v. Greenwald, No. 4:20-cv-00440-DCN, 2022 WL 2180052, at *3 (D. Idaho June 15, 2022) (citing Fed.R.Civ.P. 26(b)(4)(B)-(C)). While this court's research has revealed no cases from the Tenth Circuit or this District that have squarely addressed the question of whether Rule 45 subpoenas are properly issued to retained experts, other courts have found that the use of the subpoena process is improper in this context and have granted motions to quash subpoenas directed to such experts.

Some of these district court decisions allow a Rule 45 subpoena on an expert witness; others do not. See, e.g., United States v. Bazaarvoice, Inc, 2013 WL 3784240 (N.D. Cal. July 18, 2013) (finding the use of a Rule 45 subpoena on an expert witness is proper); Spencer v. Greenwald, 2022 WL 2180052 (D. Idaho June 15, 2022) (finding the use of a Rule 45 subpoena on an expert witness is improper).

In Roman v. City of Chicago, 2023 WL 121765 at *11 (N.D. Ill. Jan. 6,2023), a district case in the Seventh Circuit, the court noted that many courts that found a Rule 45 subpoena to be improper relied on Marsh v. Jackson, 141 F.R.D. 431 (WD. Va. 1992), a Fourth Circuit district case. See Spencer v. Greenwald, 2022 WL 2180052, at *3; Anderson v. Boyne, 2024 WL 4667237, at *2; Westchester Surplus Lines Ins. Co., 2017 WL 2313288, at *2; Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd. P'ship, 154 F.R.D. 202, 210 (N.D. Ind. 1993). The court in Roman noted that the Marsh opinion dealt with the issuance of a subpoena for documents to an expert that did not involve a subsequent deposition.