dissenting.
Initially, I1 note my reluctant agreement with the majority's determination that we have jurisdiction to address the merits of the underlying discovery orders in this case. My reluctance is based primarily on the fact that I was on the panel that decided Scroghan; although we did not intend to open the floodgates of appellate litigation regarding discovery matters, I am now concerned that such could well be the practical effect of that decision. Perhaps any newfound zeal to pursue such litigation will be tempered by the prospect of additional sanctions for an unsuccessful appeal. See (Georgetown Steel Corp. v. Chaffee, 519 N.E.2d 574, 577 (Ind.Ct.App.1988) (holding that appellees were entitled to expenses of successfully defending motion to compel on appeal, given that such expenses were created by appellant's "failure to reply with a reasonable discovery request" and that "if appellate expenses were not awardable, then the original award [for discovery sanctions] would be offset and its benefit negated."), trans. denied.
Turning to the merits of this case, I believe that White-Rodgers's failure to comply with the discovery orders was not substantially justified in light of American Buildings Co. v. Kokomo Grain Co., 506 N.E.2d 56, which in my view should control the outcome of this case. Although American Buildings has been on the books and guided discovery proceedings in Indiana for nearly a quarter century,7 the majority gives it short shrift and criticizes its holding as "overly broad[.]" Op. at 414. I respectfully disagree.
The relevant facts in American Buildings are these:
The litigation stems from the collapse of a grain storage building sold by American to Kokomo. Following the collapse, Kokomo filed its complaint against American alleging breach of contract, negligence, fraud, and strict liability in tort for defective engineering, design, manufacturing, erection and construction of the building.
In the course of discovery, Kokomo filed a request for production by American of all investigative reports and notes made by American, or on its behalf, regarding six prior similar failures of buildings sold by American. Kokomo specifically requested the report of Jim Fisher, an expert hired by American to analyze the collapse of a building in Wisconsin similar to the building sold by American to Kokomo. American object*416ed to the request, asserting that the documents sought were irrelevant and protected by the work-product doctrine.
506 N.E.2d at 58.
Kokomo moved for an order to compel. The trial court granted the motion and issued an order compelling American
to comply therewith save and except those matters which are the work product of the attorneys on any and all cases that were actually filed and active at the time the information sought was determined. The court finds that all other memorandums, testing results and the like are relevant to the case at bar and are discoverable as non-work product.
Id. The trial court certified its order for interlocutory appeal.
On appeal, American argued that the order to compel was erroneous in that "(1) permits discovery of work product from previously terminated litigation, (2) requires a case to have been actually filed and active at the time a document was created in order for the document to qualify as work product, and (8) limits the work-product doctrine to work product of attorneys." Id. In responding to these arguments, this Court observed that
while both parties couch their arguments in terms of the work-product doe-trine, this case also involves the requested production of a document prepared by an expert in anticipation of litigation. The concepts are distinct. The discovery of work product and matters from experts are governed by separate provisions within Trial Rule 26[, i.e., subdivisions (B)(8)8 and (B)(4)].
Id.
Writing for a unanimous panel, Judge Sullivan noted that Indiana Trial Rule 26 is adopted from the Federal Rules of Civil Procedure and quoted federal authorities stating that the work product doctrine provisions of Federal Rule 26 are not controlling on the issue of expert information. He concluded, "[t]hus, when discussing the discovery of facts known and opinions held by an expert, we are not concerned with a branch of the work-product doctrine but rather a separate exception to the general rule codified by [Trial Rule] 26(B)(1) that all relevant matters are discoverable." Id. at 59. He then framed the issue as follows:
Because the rule governing discovery of materials from experts is distinct from the rule governing discovery of work product, our inquiry with respect to the report prepared by Jim Fisher is not whether the work-product exception to the general discovery rule of 26(B)(1) applies to work product prepared in anticipation of prior litigation, but whether the 26(B)(4) exception applies to experts retained in anticipation of prior litigation.
Id.
Judge Sullivan acknowledged that this was a question of first impression in *417Indiana and considered several federal authorities that were "helpful in the resolution of the issue." Id. He then stated, "Our reading of Indiana Trial Rule 26(B)(4) leads us to the same conclusion reached by the cases cited above-that the protection granted materials from experts does not extend to facts known or opinions held by an expert retained or specifically employed in anticipation of prior litigation." Id. at 60. Judge Sullivan closely examined the wording of Trial Rule 26(B)(4)(a)(1) and -(b) and remarked,
It is impossible for an expert not to be expected to be called as a witness in a trial which has already taken place. Thus, 26(B)(4)(b) does not apply to expert witnesses retained or specifically hired in anticipation of prior litigation. The report prepared by Jim Fisher was not protected from discovery by [Trial Rule] 26(B)(4)(b).
Id. at 60-61 (footnote omitted).
Judge Sullivan hastened to observe, however, that
[a] determination that items are not protected by [Trial Rule] 26(B)(4) does not necessarily preclude a determination that the same materials are protected from discovery under [Trial Rule] 26(B)(3). However, in this case it is clear that the Fisher report does not fall within the ambit of 26(B)(3), even though 26(B)(3) may protect work product prepared in anticipation of prior litigation. Trial Rule 26(B)(8) protects documents and tangible things prepared in anticipation of litigation by a party or the party's representative, including his attorney, consultant, surety, indemnitor, insurer, or agent.
Fisher was an expert retained by American rather than a representative of American. It could be argued that Fisher was a consultant. However, in the context of Trial Rule 26(B)(3) a consultant must do more than simply provide information. A consultant provides advice. One who provides advice does so in order to aid the party he is advising. The two are teamed in an effort to achieve a successful result. In contrast, the primary function of an expert is to provide information. "[AJn expert is expected to owe his allegiance to his calling and not to the party employing him." Virginia Electric & Power Co. [v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 406 (E.D.Va.1975)]. In this case, there is nothing of record to indicate that Fisher served American in any role other than that of expert. He provided American with his expert opinion as to the reason for the Wisconsin building collapse. He did not advise American in its preparation for litigation. He was not a consultant and his opinion and report were not protected by [Trial Rule] 26(B)(3).
Because the report prepared by Fisher is not protected either by [Trial Rule] 26(B)(3) or [Trial Rule] 26(B)(4), it is discoverable under the general provisions of TR. 26(B)(1). There can be no doubt that the Fisher report is relevant.
"[RJelevancy for the purposes of discovery is not the same as relevancy at trial. A document is relevant to discovery if there is the possibility the information sought may be relevant to the subject matter of the action." CIGNA-INA/Aetna v. Hagerman-Shambaugh, [473 N.E.2d 1033, 1036 (Ind.Ct.App.1985)] (citations omitted).
The reasons for the previous collapse of a building similar to that purchased by Kokomo might closely approximate the cireumstances or conditions surrounding the Kokomo collapse. The Fisher report is, therefore, discoverable.
*418Id. at 61 (footnote and some citations omitted) (some alterations in American Buildings ).
Judge Sullivan then "eonsider[ed] the other documents sought to be protected by American under the work-product doctrine of [Trial Rule] 26(B)(8)." Id. ((footnote omitted).
These other documents, like the Fisher report, were apparently prepared in anticipation of prior litigation. However, our holding that the protections of [Trial Rule] 26(B)(4) apply only to experts retained in anticipation of pending litigation does not mandate a similar interpretation with regard to [Trial Rule] 26(B)(3). As noted, the exceptions to the general discovery provision of [Trial Rule] 26(B)(1) which are provided for work product and experts are distinct. Restrictions upon the discovery of materials from experts imposed by 26(B)(4) are designed to guard against the danger that one party will unfairly use another party's experts to prepare his case. Thus, the concern underlying the exception is the maintenance of fairness in a particular adversarial proceeding. In contrast, the rationale supporting the work-product doctrine goes to the heart of the attorney-client relationship.
"The primary purpose of the work product privilege is to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client. The work product privilege would be attenuated if it were limited to documents that were prepared in the case for which discovery is sought. What is needed, if we are to remain faithful to the articulated policies of Hickman [v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)], is a perpetual protection for work product, one that extends be-youd the termination of the litigation for which the documents were prepared. Any less protection would generate the very evils that the Court in Hickman attempted to avoid." In re Murphy [560 F.2d 326, 334 (8th Cir.1977)].
The rationale of the Murphy court is persuasive. Accordingly, we hold that the work-product doctrine applies to items prepared in anticipation of prior litigation. Our holding is in accord with the majority of federal cases which have considered the question.
We recognize the apparent inconsistency between our holding that 26(B)(3) applies to prior litigation and our holding that 26(B)(4) does not. However, we must reiterate that, despite their presence within the same trial rule, 26(B)(3) and 26(B)(4) are independent exceptions to the general discovery provision. Given the intent of Trial Rule 26(B)(3) and 26(B)(4), it is not logically possible to harmonize the meaning of "in anticipation of litigation" within the two see-tions.
Id. at 61-62 (citations omitted).
The majority contends that the holding in American Buildings was "subsequently narrowed" by Reeves v. Boyd & Sons, Inc., 654 N.E.2d 864, and R.R. Donnelley & Sons Co. v. North Texas Steel Co., 752 N.E.2d 112. Op. at 413. I respectfully disagree, in that Reeves involved the designation and undesignation of an expert during a single proceeding, and Donnelley, as the Plaintiffs correctly observe, "involve[d] *419a consulting expert who was hired by a party to a case and whose testimony was used in that very same case after the party that hired the consulting expert was dismissed." Appellees' Br. at 30-31. As such, I believe that American Buildings, in addition to being soundly reasoned, remains very much alive and well as binding precedent.9
The only potentially significant distinction between American Buildings and this case is that White-Rodgers settled the Glascock litigation before it designated which of the consultants listed on its privilege log were its "trial experts" and which were its "consultation 'experts." White, Rodgers reasons that because it never made this designation, it had no "experts" at all for purposes of American Buildings. I find this reasoning specious, as did the trial court: Appellee's App. at 246. In short, I find White-Rodgers's failure to label its (Glas-cock experts to be a distinction without a difference as far as American Buildings is concerned.
[Y¥lour suggestion, it's certainly an easy one, that until the point you have to file and designate expert witnesses you don't ever-that they are totally protected forever and ever, and that's a pretty-that would be a pretty easy standard. And if that were the standard I think that's what the cases would all say because that would be such an easy default. I don't think it serves the purpose of finding the truth in subsequent cases, and I think if there are facts and truth known to White-Rodgers about this valve or a valve that potentially is the same or sufficiently similar to be relevant to this ease, then it should-it's fair that the plaintiffs have that information.
I also find the majority's concerns about the consequences of following American Buildings to be unwarranted. Again, that case has been on the books for nearly twenty-five years, and it does not seem to have adversely affected the willingness of parties to consult with experts or settle litigation as expeditiously as possible. With the possible exception of this case, Indiana's trial courts have not been "cloggled]" with "unnecessary litigation" as a result of American Buildings. Op. at 414. As for the majority's trumpeting of the "principles of fairness of not allowing one party to build its case on the resources and due diligence of another party[,]" id., the Plaintiffs correctly point out that an expert's evaluation from a prior lawsuit "was already paid for in the first lawsuit, and the party that purchased it already has had the opportunity to benefit from it[.]" Appellee's Br. at 33. In my view, the majority's undue emphasis on the economic impact of expert disclosures is based on an outmoded concept of jurisprudence that often valued a party's financial resources more highly than fundamental fairness and the search for truth. As we recently noted in Sinks v. Caughey, "The purpose behind discovery and pretrial procedures is to 'make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." 890 N.E.2d 34, 44 n. 9 (Ind.Ct.App.2008) (quoting U.S. v. Procter & Gamble Co., 356 U.S. 677, *420682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). The modern discovery process is a balance weighted more heavily in favor of disclosure, and 1 believe that the mere economic value of expert materials-especially from terminated litigation-is an insufficient justification for nondisclosure.
In sum, I would hold that the trial court did not abuse its discretion in imposing sanctions on White-Rodgers, and I would grant the Plaintiffs' request for expenses for defending the order for sanctions on appeal. See Georgetown Steel Corp., 519 N.E.2d at 577.10
. Consequently, I find White-Rodgers's reference to Pandora's Box in its discussion of American Buildings especially inapposite. See Appellant's Br. at 30-31 ("By allowing a party to discover the strategic advice its adversary obtained in prior litigation simply because that litigation has terminated is the antithesis of fairness and akin to opening Pandora's Box on Trial Rule 26 discovery protections.").
. Trial Rule 26(B)(3) reads in pertinent part, Trial preparation: Materials Subject to the provisions of subdivision (B)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
. White-Rodgers claims that its failure to comply with the Amended Order was substantially justified based in part on Dean William F. Harvey's criticism of American Buildings in his treatise on the Indiana Rules of Trial Procedure. With all due respect to Dean Harvey, I find it telling that the Indiana Supreme Court has not seen fit to amend Trial Rule 26 or overrule American Buildings in response to his commentary in the two decades since that case was decided.
. White-Rodgers cites Trost-Steffen v. Steffen, 772 N.E.2d 500 (Ind.Ct.App.2002), trans. denied, for the proposition that appellate expenses are unwarranted, noting that another panel of this Court "upheld a trial court's discovery sanction but found appellate attorney fees improper because the appeal was not 'replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.'" Appellee's Br. at 22 (quoting Trost-Steffen, 772 N.E.2d at 514) (emphasis in Appellee's Br. omitted). I find that case inapposite, however, because the appellant challenged several aspecis of the parties' dissolution decree in addition to a discovery sanction.