Federal Rule 26(a)(2) is a trap for the unwary. Best practice would entail reviewing it thoroughly each time a disclosure is in process. That review should also include the committee notes. For a reminder, examine Pertile v. General Motors, LLC, et al., 2017 U.S. Dist. 141088 (D. Colo. Aug. 31, 2017).
In this rollover-accident case, General Motors refused to produce certain files produced to its employee-expert. GM argued that the files were not pertinent to the expert’s opinion. The magistrate judge ordered the files to be produced; they were materials “considered” by the expert. GM requested the district judge to review and overturn that ruling. GM did not request a stay of the ruling and failed to comply with the ruling pending review.
The court affirmed the ruling and warned GM that its failure to comply with the ruling was sanctionable where no stay had been entered.
The court noted that FRCP 26(a)(2)(B)(ii) states that an expert’s written report must contain “the facts or data considered by the witness in forming” (emphasis added) all opinions the witness will express. The committee notes on Rules-2010 Amendment states in relevant part:
The refocus of disclosure on “facts or data” is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the intention is that “facts or data” be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data “considered” by the expert in forming the opinions to be expressed, not only those relied upon by the expert (emphasis added).
The magistrate judge found, and the district judge agreed, based in part on existing authority, that the word “considered” means something broader than “relied upon” but something less than material simply in the background knowledge of the expert. A proper application of Rule 26(a)(2), the court said, must “provide an adversary with sufficient information to engage in meaningful cross-examination" of an opposing expert. The court also relied on authority supporting “an objective test that defines 'considered' in Rule 26(a)(2)(B)(ii) as anything received, reviewed, read, or authored by the expert, before or in connection with the forming of [her] opinion, if the subject matter relates to the facts or opinions expressed."
The court then turned to the issue of GM’s failure to comply with the magistrate judge’s order during the time that order was being reviewed. The court declined to sanction GM but warned that it was “displeased that despite Judge Wang's specific direction, GM simply declined to comply with Judge Wang's Order, rather than seeking to stay its effect during the pendency of its objection.”
Pertile instructs that practitioners using experts must be thoroughly familiar with Rule 26, the committee notes, and case law before engaging in expensive expert-disclosure battles. It is also prudent not to risk Rule 37 sanctions by simply refusing to comply with a magistrate judge’s order to which you intend to object.
Andrew M. Toft is an attorney in Denver, Colorado.