*1 On March 3, 2015, defendants filed a Motion to Compel Plaintiff's Retained Expert Bryan R. Burnett's, DBA Meixa Tech, Compliance with Subpoena. Docket no. 134. The motion was accompanied by a joint s tipulation (“JS”) pursuant to Local Rule 37-2. On March 17, 2015, defendants and plaintiff submitted supplemental memoranda pursuant to Local Rule 37-2.3. Docket nos. 136, 137. The matter came before the court for a hearing on March 17, 2015. After considering the parties' written and oral arguments, the court DENIES defendants' motion to compel.

Plaintiff initiated this case by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 on June 18, 2009. Plaintiff's claims arise out of his arrest on August 13, 2007, which was proceeded by a shootout with San Bernardino Deputy Sheriffs and for which plaintiff was later charged and convicted of the attempted murder of three deputies. Following a motion for summary judgment, the only remaining defendants are Detective Deputy Sheriffs Doug Wolfe and Gabriel Padilla, both of whom allegedly shot plaintiff after he had surrendered and was in a prone position, thereby violating plaintiff's Eighth Amendment rights against excessive force. See docket no. 3 at ¶¶5-7, 20-23; docket no. 73.

Discovery in this case closed on February 14, 2014, with expert discovery closing April 7, 2014. Docket no. 104. Some months prior to the close of discovery, counsel began meeting and conferring regarding plaintiff's request to obtain samples of the clothing plaintiff was wearing when he was shot to allow an expert to test it for gunshot residue, which could potentially help prove plaintiff's claim that he was shot at close range. Thebeau Decl. ¶¶ 3-4; Docket no. 108. Defendants' counsel stated they would need to know who the expert was and the testing details. Thebeau Decl. ¶ 6. Plaintiff's counsel responded by sending a letter identifying the expert, attaching his CV, and describing the testing objective and process. Thebeau Decl. ¶ 7, Ex. B.

As discovery closed during the meet and confer process, plaintiff moved to reopen discovery for the purpose of having an expert test the clothing plaintiff was wearing. Docket no. 108. On April 21, 2014, the court granted plaintiff's request to reopen discovery for the limited purpose of allowing plaintiff to have an expert test the clothing for gunshot residue. Docket no. 111. The court ordered plaintiff to provide defendants with the expert's testing report by May 23, 2014, and to file a one-page summary of the report with the court by May 27, 2014. Id.

On May 23, 2014, plaintiff's counsel sent a letter to defense counsel, indicating that testing conducted by expert Bryan R. Burnett (of Meixa Tech) had come back inconclusive and thus no report would be produced. Raney Decl., Ex. A. On May 27, 2014, plaintiff filed a summary with the court, informing the court that the testing conducted by Mr. Burnett had come back inconclusive and, accordingly, plaintiff would not rely on any report or testing by Mr. Burnett. Docket no. 112. Defendants did not then argue, and the court did not find, that plaintiff failed to comply with the court's order to produce reports of the testing.

*2 Plaintiff's counsel moved to withdraw as counsel on July 17, 2014, and the court denied the motion to withdraw on October 2, 2014. On October 15, 2014, defendants served a subpoena on Meixa Tech, requesting “any and all non-privileged records presently in your possession pertaining to Thomas Mackey. Including records of Bryan Burnett, MS.” Thebeau Decl. ¶12, Ex. F; Raney Decl., Ex. C at 2. On December 4, 2014, plaintiff served defendants with Meixa Tech's responses to the subpoena. Id. Meixa Tech objected to the subpoena on the grounds that the subpoena: (1) seeks information protected by the attorney-client privilege and work-product doctrine; (2) is harassing to the extent it seeks information already in defendants' custody or control or equally available to defendants; (3) seeks confidential information; (4) is overly broad and unduly burdensome; and (5) seeks irrelevant information. Thebeau Decl., Ex. F; Raney Decl., Ex. C.

The parties subsequently engaged in meet-and-confer efforts but were unable to resolve this dispute. See JS at 1; Thebeau Decl. ¶14; Raney Decl. ¶¶ 6-7, Ex. D.

Plaintiff objects to the motion to compel on the grounds that such discovery: (1) falls after the discovery cut-off; (2) is improper as Mr. Burnett is not a testifying expert and no exceptional circumstances exist; and (3) seeks privileged information. JS at 3-5, 22-32.

As a threshold issue, plaintiff contends that the subpoena at issue was served long after the discovery cut-off. JS at 30-32. Discovery in this case initially closed on February 14, 2014, with expert discovery closing April 7, 2014. Docket no. 104. The court subsequently re-opened discovery for the limited purpose of allowing plaintiff to have an expert test his clothing for gunshot residue. Docket no. 111. Pursuant to the court's order, plaintiff notified defendants on May 23, 2014 that the testing was inconclusive and thus no report would be offered and filed a testing summary with the court on May 27, 2014. More than four months later, on October 15, 2014, defendants served plaintiff's expert with the subpoena at issue here. Defendants maintain that the court's order re-opening discovery granted the parties relief from the April 7, 2014 cut-off date. Ds' Supp. Mem. at 1-2. The court agrees in part.

In granting plaintiff's Ex Parte Application to Re-open Discovery For Limited Purpose of Allowing Expert Testing and for Continuance of Case Schedule (docket no. 108), the court did not reopen discovery for all purposes. See docket no. 111. But in light of the fact that the disputed discovery here stems from the limited discovery permitted by the court, the court finds the subpoena is fairly encompassed within the court's order reopening discovery. The delay in serving the subpoena is problematic, and plaintiff's argument that the subpoena is untimely is a fair one. In light of the uncertainty between July and October 2014 as to who would be representing plaintiff and the other circumstances of this case, however, the court finds the subpoena is not untimely. The court therefore considers defendants' motion to compel on its merits.

Plaintiff contends that Mr. Burnett was retained as a non-testifying consultant to test evidence from plaintiff's underlying criminal case and assist plaintiff in preparing for trial in the present action. JS at 23-24. As such, plaintiff maintains, defendants are not entitled to discovery regarding Mr. Burnett's testing. Id.

Rule 26(b)(4)(D) provides:

*3 Fed. Rule Civ. P. 26(b)(4)(D). Thus, Rule 26(b)(4)(D) “ ‘creates a safe harbor whereby facts and opinions of non[-]testifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances.’ ” U.S. Inspection Services, Inc. v. NL Engineered Solutions, LLC, 268 F.R.D. 614, 617 (N.D. Cal. 2010) (citation omitted). Indeed, where an expert will not testify, the purposes of disclosure – better preparing attorneys and minimizing surprise at trial – are not present. See Fed. R. Civ. P. 26, advisory committee's note (1970) (discovery typically accomplishes the “narrowing of issues and elimination of surprise”); Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008); Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992). This protection covers “drafts of any report ... regardless of the form in which the draft is recorded.” Fed. R. Civ. P. 26(b)(4)(B)

Plaintiff maintains that at no point has Mr. Burnett been designated as a testifying expert in this case. See JS at 24-25. Defendants disputed this at the hearing, pointing to the fact that plaintiff disclosed both Burnett's name and CV as if he were a testifying expert. But as plaintiff's counsel noted, they only disclosed this information at defendants' counsel's request, as defendants maintained they needed this information before they could release the clothing for testing. Defendants' assertion that plaintiff informed them for the first time in the JS that Mr. Burnett was a “non-testifying consultant” is unpersuasive, as the record indicates otherwise. See Thebeau Decl., Ex. B; id. at Ex. D; Raney Decl. ¶6, Exs. A, D-E. Indeed, although it is clear that plaintiff's counsel contemplated designating Burnett as a testifying expert had the testing gone the way they hoped, there is nothing in the record to indicate plaintiff actually ever designated Burnett as a testifying expert.

Accordingly, pursuant to Rule 26(b)(4)(D)(ii), defendants must demonstrate the existence of exceptional circumstances to warrant the discovery sought here. See U.S. Inspection Services Inc., 268 F.R.D. at 618 (“the party seeking discovery from a non-testifying expert carries a heavy burden of proving the existence of exceptional circumstances”).

Courts have found exceptional circumstances sufficient to order the production of non-testifying expert records in cases where it is “impracticable for the party seeking discovery to obtain facts or opinions on the same subject by any other means, or the object or condition at issue is destroyed or has deteriorated after the non-testifying expert observes it but before the moving party's expert has an opportunity to observe it.” U.S. Inspection Services Inc., 268 F.R.D. at 623 (citing Oki America, Inc. v. Advanced Micro Devices, Inc., 2006 WL 2987022, at *2-3 (N.D. Cal. Sept. 27, 2006); FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1046 (E.D. Cal. 2002)).

Defendants made no argument in the papers that exceptional circumstances exist here. Indeed, it appears that defendants most likely could “obtain facts or opinions on the same subject by other means” – namely by hiring their own expert to conduct testing on the clothing, which is presumably in the custody of defendant San Bernardino County. At the hearing, defendants indicated that it is now too late for them to conduct the testing, and that they cannot retest the 1 cm square of fabric tested by Burnett. But while defendants cannot replicate the testing done by Burnett, there was nothing to prevent them from testing other, equivalent samples of the clothing once they learned Burnett's testing results were inconclusive last May. That they elected not to do so does not constitute an exceptional circumstance. See U.S. Inspection Services Inc., 268 F.R.D. at 618.

*4 Defendants primarily rely on the fact that the court ordered plaintiff to produce an expert report, contending that the court's allowance of the limited discovery was conditioned on production of an expert report. See JS at 17-18. A fair reading of the court's order does not support defendants' interpretation. The court granted plaintiff's application to reopen discovery and ordered plaintiff to provide defendants with “the expert testing report” and to provide the court with a one-page summary of “the report” by specified dates. Docket no. 111. The language in the court's order assumes the existence of a report, but the thrust of the order appears to be more in the nature of setting deadlines rather than requiring the expert to prepare a report. As plaintiff notified defendants and the court, the testing conducted by Mr. Burnett yielded inconclusive results, and thus no report was produced. JS at 3-4, 27; Thebeau Decl., Ex. B; id. at Ex. D; Raney Decl. ¶6, Exs. A, D-E. Moreover, nothing in the court's language indicates that reopening discovery was expressly conditioned on the production of a report. See docket no. 111.

Because defendants have failed to show any exceptional circumstances existed such that discovery related to Mr. Burnett is warranted, and because the court's order granting the reopening of discovery did not explicitly order the preparation of an expert report, but simply set a deadline for the production of any report, the discovery sought here is improper.

Plaintiff makes the alternative argument that even if Mr. Burnett was designated as a testifying witness – which plaintiff maintains he was not – discovery is still properly withheld on the grounds that he has since been re-designated as a consulting expert. JS at 24, 28. Defendants argue that the re-designation line of cases plaintiff relies on are inapplicable where, as here, plaintiff “reported the expert's conclusion pertaining to the testing to the court and defendants.” Id. at 22. Essentially, defendants appear to argue that by providing Mr. Burnett's identity and conclusion – that the tests were inconclusive – plaintiff has waived any discovery protection afforded to Mr. Burnett. See id. at 17-18, 21-22. As set forth above, the court finds plaintiff never designated Mr. Burnett as a testifying witness. But even if he had and then re-designated him as a consulting expert, defendants still would not be entitled to the discovery they seek.

The majority of courts have held that discovery of a testifying witness who is subsequently re-designated as a non-testifying witness, is governed by the “exceptional circumstances” standard of Rule 26(b)(4)(D)(ii). See Federal Ins. Co. v. St. Paul Fire and Marine Ins. Co., 2008 WL 761417, at *3 (N.D. Cal. March 19, 2008); FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1046 (E.D. Cal. 2002); R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 899 (N.D. Ohio 2009); Estate of Manship v. U.S., 240 F.R.D. 229, 233-37 (M.D. La. 2006). But where an expert provides testimony or produces a report prior to re-designation, courts have held that discovery of that expert should be permitted. See Federal Ins. Co., 2008 WL 761417, at *3.

It is this latter line of cases that defendants rely on here, citing Penn National Insurance Co. v. HNI Corp., 245 F.R.D. 190 (M.D. PA 2007), as support. JS at 18. There, plaintiffs designated experts to be used at trial and submitted those experts' reports. Penn Nat. Ins., 245 F.R.D. at 194. The court held that by designating the experts “pursuant to Rule 26(b)(2) and allowing discovery of their expert reports without objection, [plaintiffs] waived the protection of Rule 26(b)(4)(B) and subjected these experts' opinions to the scrutiny of trial.” Id. But here plaintiff neither designated Mr. Burnett as an expert pursuant to Rule 26(b)(2) nor produced any testimony or an expert report. See Federal Ins. Co., 2008 WL 761417, at *3. The notification that Mr. Burnett's testing was inconclusive is not equivalent to production of a report. Accordingly, the “exceptional circumstances” standard governs here. See FMC Corp., 196 F. Supp. 2d at 1046. Because, as discussed above, defendants have failed to prove the existence of any exceptional circumstances, discovery related to Mr. Burnett is improper under Rule 26(b)(4)(D).

*5 In sum, the court finds that defendants' motion to compel seeks information protected under Rule 26(b)(4)(D) and that no exceptional circumstances exist to warrant discovery. Because the court finds that the discovery sought is improper under Rule 26(b)(4)(D), it does not address plaintiff's additional objections on work-product doctrine and attorney-client privilege grounds. See JS at 26.

Both defendants and plaintiff seek sanctions. JS at 32-33. Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5).

Here, although plaintiff is the prevailing party, the court finds plaintiff is not entitled to recover its expenses incurred in opposing the motion. Although defendants' position was not substantially justified, the circumstances leading up to this motion were sufficiently unusual that confusion about precisely what discovery was permitted is understandable, making an award of expenses unjust. Accordingly, the court will not award monetary sanctions.

For the foregoing reasons, it is hereby ORDERED that defendants' Motion to Compel (docket no. 134) is DENIED.

Rule 35(b) pertains to examiner's reports of physical and mental examinations and is not applicable here.