The obligation to retain and produce drafts of expert reports in discovery is becoming a common dispute area. Using current word processing technology, such drafts are often not reduced to paper. Typically, the party seeking additional discovery contends that the expert witness should produce emails and/or report drafts that were provided to employing counsel.
In University of Pittsburgh vs. Townsend, et al. (2007 WL 1002317 E.D. Tenn.), the defendant sought to exclude the testimony of two expert witnesses based on claims of evidence spoliation. The Townsend case facts are common, and hence quite instructive as to proper procedures. Specifically:
- The experts at issue had not retained previous drafts of their reports, as work occurred on only one electronic copy.
- The experts emailed employing legal counsel with drafts of the reports.
- Employing counsel emailed the drafts back with revisions. Such revisions consisted of adding Bates numbers, correcting typographical errors, and adding specifically identifiable footnotes providing legal citations. The experts described all changes as stylistic and not substantive. One of the experts was also asked to (i) remove a report section that addressed a specifically-identifiable subject not at issue in the case, and (ii) add a specifically identifiable additional issue that was contained in the final report.
- Emails between the experts and employing counsel were not retained. This occurred because of legal counsel’s instruction or suggestion that the experts destroy such communications.
- A subpoena was issued regarding the experts’ depositions. No documents were destroyed once the subpoenas were served.
The Court addressed the obligations of experts to retain documents, as follows:
“Contrary to the defendants’ assertion, the Court does not read Rule 26(a)(2) to impose an affirmative duty upon an expert to preserve all documents, particularly draft reports, and the defendants do not cite any support for such a sweeping obligation. Nor does Rule 26(a)(2) require that draft reports be disclosed as part of any expert disclosure.”
Early in the discovery process, the defendants did make a general request for production of all records provided to or by any expert witness. In addressing this request, the Court concluded:
“The Court finds this request, served well over a year prior to the date that any expert disclosures were required to be made, to be an unreasonable request, essentially imposing a continuing obligation on a party to disclose any document from an expert – whether it be a letter or a draft report – as it is received throughout the consultation process. Such a requirement would essentially nullify the expert disclosure deadline established by the Court.”
However, the Court found that counsel’s instruction or suggestion to destroy emails was inappropriate. The instruction itself was the problem, leading this author to conclude that the Court would not have been concerned if the experts had followed whatever they would have normally done without counsel’s instruction. Despite the impropriety, the Court did not exercise its discretion to impose any sanctions because:
“… the Court does not find that this action was done with any fraudulent intent. … The Court finds that the defendants have not been prejudiced by the destruction of these communications, as the defendants have been able to fully cross-examine the witnesses, both during depositions and at the Daubert hearing, on the substance of these communications and particularly, counsel’s input into their respective reports.”
Prior to this case, the most commonly cited cased in this area was Trigon Insurance Company vs. United States (277 F.R.D. at 240, E.D. VA 2001). The Trigon Court addressed whether expert reports are discoverable once the draft reports are shared with legal counsel or others outside the expert’s firm. Importantly, the Trigon case did not require the expert to disclose any draft prepared internally while the expert was formulating conclusions. However, the Trigon Court did require that drafts shared with legal counsel be produced.
The Trigon case may have been a situation where bad facts equals bad law, since the expert report was ghost written for the expert witness by a combination of legal counsel and consulting (non-testifying) experts. Unlike the Townsend situation described above, the expert in Trigon was unable to testify specifically regarding the process by which others (including legal counsel) had written the report. Accordingly, the Trigon Court concluded that the expert was “an alter ego of the attorney who will be trying the case.” Because of spoliation of the ghostwritten draft reports, the Court allowed the expert to testify, but gave an adverse inference instruction as to the substance of the report and the credibility of the expert who had allowed his report to be ghost written.
Fulcrum Inquiry regularly provides expert testimony involving damages, accounting, economics, appraisal and related areas.