On May 17, 2013, the US District Court for the Southern District of Indiana issued a decision in Davis v. Carmel Clay Schools quashing a subpoena seeking discovery from the defendant's consulting expert. The defendant originally designated the expert as a testifying expert. However, before submitting the expert's formal report as required by FRCP 26(a)(2)(B), the defendant withdrew him as a testifying expert. According to the defendant, this transformed the former testifying expert into a non-testifying, consulting expert.

The federal rules allow for liberal discovery from witnesses designated as "testifying" experts. In contrast, discovery from non-testifying, consulting experts is impermissible absent a showing of "exceptional circumstances" (FRCP 26(b)(4)(D)).

The defendant moved to quash the subpoena, arguing that because it did not fully disclose its testifying expert (meaning, it did not produce the expert report required under FRCP 26(a)(2)), the expert should be deemed a consulting expert who is generally immune from discovery. Plaintiff countered that because the defendant already disclosed the name of the testifying expert, any confidentiality provided for the purported "consulting" expert had been waived.

The court ruled that FRCP 26(b)(4) requires disclosure of both the expert's name and the expert's report for that expert to be fully "disclosed" as a testifying expert under FRCP 26. According to the court, a party may re-designate a testifying expert as a consulting expert before submitting a formal expert report. Therefore, the court held that the plaintiff could not conduct discovery of the defendant's expert absent a showing of "exceptional circumstances" under FRCP 26(b)(4)(D). Because the plaintiff failed to make this showing, the court granted the defendant's motion to quash.