May 20, 2011 Articles

The Employee-Expert Report: To Write or Not to Write?

The report offers cost-savings and efficiencies gained from understanding a party's business in advance of litigation

By E. Barrett Atwood

Although it may be a stretch to say that is the question, the frequency of employees being offered as testifying experts in federal court certainly makes it a relevant question for many attorneys today. From the commonplace treating physician to the in-house technical expert to the government investigator, this question continues to arise. The reasons for offering an employee-expert range from cost-savings to efficiencies gained from understanding a party's business in advance of litigation to presenting the witness with arguably the most knowledgeable basis for an expert opinion. Whatever the reason, the question of whether to submit an expert report written and prepared by an employee-expert looms large. Failure to satisfy Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure can often lead to an expert witness's testimony being excluded pursuant to Fed. R. Civ. P. 37(c)(1) and Rule 702 of the Federal Rules of Evidence.

Under Fed. R. Civ. P. 26(a)(2)(B), an expert report is required only from those witnesses who are "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." The plain language of the Rule seemingly lays out those circumstances when an expert report is required: (1) if the witness is retained or specially employed to provide expert testimony; or (2) if the witness is a party's employee whose duties include regularly giving expert testimony. However, courts do not uniformly apply this Rule.

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