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).