Mantolete v. Bolger
In Mantolete v. Bolger, 96 F.R.D. 179, 182 (D. Ariz. 1982), the court reasoned that when a defendant changed its expert's designation from "testifying expert" to "non-testifying" expert under Rule 26(b)(4) of the Federal Rules of Civil Procedure, discovery by plaintiff was limited to the restrictions set forth for non-testifying experts. Id.
The court rejected the plaintiff's argument that the redesignation of the witness was simply a way to avoid discovery and thus a gross abuse of the federal rules. Id. at 182 n.2.
Instead, the court opined that the "defendant is permitted to execute the trial strategy it deems appropriate to defend its case; this extends to changing the status of an expert, which thereby narrows the scope of discovery." Id.