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noting "there is no good reason to allow what is essentially surprise expert testimony" and "the [c]ourt should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process"
Summary of this case from United States v. AfyareOpinion
January 1, 1996
EMERGING EXPERT ISSUES UNDER THE 1993 DISCLOSURE AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE GREGORY P. JOSEPH
Partner, Fried, Frank. Harris. Shriver Jacobson; member, United States Judicial Conference Advisory Committee on the Federal Rules of Evidence; Vice-Chair, Section of Litigation, American Bar Association; Fellow, American College of Trial Lawyers. All opinions are solely the author's. © 1995 Gregory P. Joseph.
The 1993 disclosure amendments to the Federal Rules of Civil Procedure — Rules 26(a)(1) to (3), and associated provisions — have spawned several novel and nettlesome questions. The expert disclosure rule in particular, Rule 26(a)(2), presents a series of issues that have serious evidentiary implications and are only beginning to percolate through the courts. Among them: First, the Advisory Committee Note recites that the drafters have intentionally intervened in the law of attorney work-product, yet the scope of this intervention is not well defined. This has a daily impact on attorney-expert communications and expert discovery. Second, precisely what must be contained in, and just who must file, the expert witness report mandated by Rule 26(a)(2)(B) are not entirely clear. Yet any nondisclosure later found unjustified presumptively results in exclusion of the undisclosed opinions or exhibits under Rule 37(c)(1). Third, there are at least two unsettled timing issues: (i) the interaction of the new Rule with a standard pretrial order that requires first the plaintiff and then the defendant to name experts, but is silent as to whether the plaintiff may name new rebuttal experts thereafter, and (ii) the ability to limit an opponent's discovery and pretrial preparation by manipulating the timing of disclosures through supplementation, either in deposition or under Rule 26(e)(1). Both of these can impinge directly on the fairness of the trial by, inter alia, limiting the parties' ability to retain appropriate rebuttal experts.
I. Overview of Expert Disclosure Requirements
A. Requirements of Rule 26(a)(2)
Unless otherwise agreed or directed by the Court, for each expert witness (defined in Rule 26(a)(2)(A)), the parties must serve on all other parties written disclosures at least 90 days before the case has been directed to be ready for trial (Rule 26(a)(2)(B)) or, if solely for rebuttal purposes, within 30 days after the disclosure which this testimony is intended to rebut (Rule 26(a)(2)(C)).
Fed.R.Civ.P. 26(a)(2)(A) provides:
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
Fed.R.Civ.P. 26(a)(2)(B) provides:
(B) Except as otherwise stipulated or directed by the court this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(C) provides:
(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).
Initial Report. Under subdivision (a)(2)(B), every party must provide a written report signed by each "witness who is retained or specially employed to provide expert testimony in the case. . . .". The report is to include:
• Opinions. "[A] complete statement of all opinions to be expressed and the basis and reasons therefor;"
• Data. "[T]he data or other information considered by the witness in forming the opinions;"
• Exhibits. "[A]ny exhibits to be used as a summary of or support for the opinions;"
• Qualifications/Publications. "[T]he qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years;"
• Compensation. "[T]he compensation to be paid for the study and testimony;"
• Testimony. "[A] listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.""Rebuttal" Report. Under subdivision (a)(2)(C), a party must also submit similar reports disclosing its expert "evidence . . . intended solely to contradict or rebut" the expert disclosures of another party.
Evasion = Nondisclosure. Under the 1993 amendment to Rule 37(a)(3), an evasive or incomplete disclosure is treated as a failure to disclose.
B. Sanctions for Nondisclosure
Preclusion of Evidence. Rule 37(c)(1), as amended effective December 1, 1993, provides that, if a party fails to make disclosure or to supplement responses as required by Rule 26(a) and (e)(1), that party is not permitted to present as substantive evidence or on summary judgment (or other) motion any evidence not so disclosed, unless there is "substantial justification" for the failure to disclose or unless the "failure is harmless." Failure to honor the disclosure obligations within the time limits set forth in Rule 26(a) frequently leads to complete preclusion of the undisclosed testimony or exhibits in accordance with Rule 37(c)(1).
Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir. 1995) (trial court within its discretion in excluding undisclosed opinions under Rule 37(c)(1)); Janopoulos v. Harvey L. Walner Assocs., Ltd., No. 93 C 5176, 1994 U.S. Dist. Lexis 4041, 1994 WL 114853 (N.D.Ill. Mar. 31, 1994) (late designation; no reports; no opportunity to depose); GEM Realty Trust v. First Nat'l Bank of Boston, No. Civ. 93-606-SD, 1995 U.S. Dist. Lexis 3864, 1995 WL 127825 at *5 (D.N.H. March 20, 1995) (violation of pretrial order by late disclosure of expert report); China Resource (USA) Ltd. v. Fayda Int'l, Inc., 856 F. Supp. 856, 866-67 (D. Del. 1994) (no disclosure); Paradigm Sales. Inc. v. Weber Marking Sys., Inc., 880 F.Supp. 1247 (N.D.Ind. 1995) (opinions not included in report are excluded); 251 CPW Housing, Ltd. v. Paragon Cable Manhattan, No. 93 Civ. 0944 (JSM), 1995 U.S. Dist. Lexis 2025, 1995 WL 70675 (S.D.N.Y. Feb. 21, 1995) ("Because the reports provided by both 257 and Nokit are so inadequate that it is impossible for defendant to ascertain any of the specifics to which plaintiffs' experts will testify or any of the bases from which they derived their conclusions, plaintiffs' experts will not be permitted to testify at trial pursuant to Fed.R.Civ.P. Rule 37(c)(1)") (citations omitted); Mi-Jack Prods. v. International Union Local 150, 1995 U.S. Dist. Lexis 16930, 1995 WL 680214 (N.D.Ill. Nov. 19, 1995).
Under the "substantial justification" and harmless-error exceptions of Rule 37(c)(1) (which are discussed below), courts are exercising their discretion not to exclude or not to exclude entirely. It is sometimes said that the automatic preclusion sanction of Rule 37(c)(1) is subject to a fundamental fairness exception. Partial exclusion of testimony from an expert may take the form of precluding the expert from offering opinion testimony while permitting testimony as to facts. Notifying Jury of Nondisclosure. Rule 37(c)(1) further provides that (in the absence of "substantial justification" for the failure to disclose or unless the "failure is harmless) the Court may inform the jury of a party's failure to make disclosure.
See. e.g., Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994) (upholding limits imposed on — but not exclusion of — expert testimony); Apel v. Rockwell Int'l Digital Communications Div'n, No 92-C-6841, 1994 U.S. Dist. Lexis 8186, 1994 WL 275038 (N.D. Ill. June 20, 1994) (no exclusion where, in absence of trial date, adversary can still depose expert without prejudice); IBM Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421 at *4 (N.D.Cal. March 15, 1995) (only certain — not all — untimely rebuttal expert testimony excluded).
See, e.g., GEM Realty Trust v. First Nat'l Bank of Boston, Civil No. 93-606-SD, 1995 U.S. Dist. Lexis 3865 at *14-*15, 1995 WL 127825 at *5 (D.N.H. March 20, 1995).
"Other Appropriate Sanctions." Rule 37(c)(1) also provides that, in the absence of "substantial justification" for the failure to disclose or unless the "failure is harmless," the Court "may impose other appropriate sanctions," including but not limited to assessing reasonable attorneys' fees or imposing sanctions of the sort enumerated in Rule 37(b)(2)(A)-(C). Rule 26(g) vests the Court with much the same power, but only for violations of 26(a)(1) or (3), not for violations of subdivision (a)(2).
Independent of Rule 37(c)(1) ( see, e.g., Arthur v. Atkinson Freight Lines, 164 F.R.D. 19, 21-22 (S.D.N.Y. 1995)), Rule 26(g)(1) now requires that every disclosure made pursuant to Fed.R.Civ.P. 26(a)(1) or (3) — but not subdivision (a)(2) — be signed and that the signature constitutes a certification that, based upon a reasonable inquiry, disclosure is complete and correct when made. Rule 26(g)(3) contains a "substantial justification" safe harbor, like that which is contained in Rule 37(c)(1) and is discussed below. The standard of liability under Rule 26(g) is that which was imposed under the 1983 version of Rule 11, and the mandatory-sanction remedy it contains — "an appropriate sanction" — opens the door to the wide variety of sanctions mirroring available under Rule 11. See generally G. Joseph, SANCTIONS. THE FEDERAL LAW OF LITIGATION ABUSE §§ 41-45 (2d ed. 1994; Supp. 1995).
C. Safe Harbors from Sanctions
Sanctions for nondisclosure are inappropriate under Rule 37(c)(1) if there was "substantial justification" for the failure to disclose or supplement, or if the "failure is harmless." These are fact-driven determinations. Substantial Justification. Among the factors that the Court may want to consider in determining whether a party's failure to disclose was substantially justified are:
• Good Faith. The good faith or bad faith of the proponent in failing to make the disclosure, and of the opponent in opposing the introduction, of the evidence. Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. 1995) (no evidence of bad faith on part of the proponent).
• Willfulness or Negligence. The willfulness or negligence of the proponent in failing to make the disclosure ( e.g., failure to discover documents despite a reasonable production effort) and of the opponent in not addressing the issue earlier ( e.g., lying in wait). Edward Lowe Indus. v. Oil-Dri Corp. of Am., No. 94 C 7568, 1995 U.S.Dist.Lexis 17127 at *5-*6, 1995 WL 683769 at *2-*3 (N.D.Ill. Nov. 15, 1995) (inadvertent omission; no preclusion where prompt supplementation precluded prejudice). Cf., Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir. 1995) (trial court within its discretion in excluding undisclosed opinions under Rule 37(c)(1), rejecting on the facts the argument that the opponent might be considered negligent for failing to uncover the opinions; "substantial justification" not specifically discussed).
• Control. Whether conditions beyond the control of the proponent changed, and those conditions are the subject of the undisclosed evidence ( e.g., testimony from an undisclosed fact witness) or the basis for a change in the evidence ( e.g., different expert testimony based on new facts).
• Surprise.
— Whether the proponent reasonably believed that the matter in question was not disputed. Friends of Santa Fe Cty. v. Lac Minerals, Inc., 892 F. Supp. 1333 (D.N.M. 1995).
— Whether the undisclosed evidence became relevant only after other, unanticipated evidence was introduced.Harmless Error. Among the factors that the Court may want to consider in determining whether a party's failure to disclose was harmless are:
• Good Faith of the Parties. Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995) (proponent); Watts v. Healthdyne, Inc., No. 94-2195-EEO, 1995 U.S.Dist.Lexis 9818 at *5-*6, 1995 WL 409022 at *2-3 (D. Kan. June 29, 1995) (both parties' failure to identify a commonly-known witness on either of their Rule 26(a)(1) disclosures leads court to reopen discovery).
• Prejudice to the Opponent. E.g.:
— Whether the undisclosed evidence was otherwise made known to the opponent. Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (failure to include compensation information, qualifications and publications in signed Rule 26(a)(2)(B) expert report harmless where the information was separately provided).
— Whether there is sufficient time prior to trial to permit the disclosure to be made belatedly. Apel v. Rockwell Int'l Digital Communications Div'n, 1994 U.S.Dist.Lexis 8186 at *1-*2, 1994 WL 275038 at *1 (no trial date yet set; deposition granted).
— Whether the opponent has been able to file responsive expert reports. Edward Lowe Indus. v. Oil-Dri Corp. of Am., No. 94 C 7568, 1995 U.S.Dist.Lexis 17127 at *5-*6, 1995 WL 683769 at *2-*3 (N.D.Ill. Nov. 15, 1995).
— Whether unproduced documents are already in the opponent's possession. AT T v. Shared Commun. Servs., No. 93-CV-3492, 1995 U.S. Dist. Lexis 13706 at *7, 1995 WL 555868 at *3 (E.D.Pa. Sept. 14, 1995).
c. Vigilance of the Adversary. Whether the adversary intentionally or negligently turned a blind eye to the absence of disclosure. Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995) (where opponent maintained it had never received the Rule 26(a)(1) disclosure but admitted receipt of a cover letter enclosing it, the "possible failure to supply the information in its self-executing disclosures or . . . in response to . . . interrogatories should not have prejudiced [the adversary] and therefore was harmless").
d. Impact of the Evidence. See, e.g., Friends of Santa Fe Cty. v. Lac Minerals, Inc., 892 F. Supp. 1333 (D.N.M. 1995) (prior nondisclosure of expert opinion offered in affidavit in support of summary judgment harmless where summary judgment denied).
II. Attorney-Expert Communications: Work-Product Abrogation
Communications between counsel and expert are often essential to the understanding and proper functioning of both, and are therefore crucial to the prosecution or defense of a case. Communications of this type include brainstorming sessions and exchanges analyzing: (i) the strengths and weaknesses of claims and defenses, whether asserted or unasserted; (ii) esoterica in the expert's field, often but not necessarily relating either to expert's own, or to another expert's, actual or prospective opinion in the case; and (iii) damages issues.
As a policy matter, mental-impression exchanges between lawyers and experts ought not be freely discoverable, under the rationale of Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947):
In performing his various duties, . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.
(Emphasis added.) Cf., Upjohn Co. v. United States, 449 U.S. 383, 400, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981). in which a unanimous Supreme Court stressed that "Rule 26 accords special protection to work product revealing the attorney's mental processes."
Under the 1993 version of the Federal Rules of Civil Procedure, discoverability of attorney-expert communications must be analyzed in light of (i) the Rule 26(a)(2)(B) mandate that all of "the data or other information considered by [an expert] witness in forming the opinions" must be disclosed, and (ii) the general protection for attorney work-product materials afforded by Rule 26(b)(3).
Fed.R.Civ.P. 26(b)(3) begins:
(3) 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 the other party's 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 the party's case and that the party 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.
A. Preexisting Case Law: Potential Rule 612 Waiver
Prior to 1993, the cases had split on the question whether, or to what extent, an attorney's written communications to a testifying expert were protected from discovery by the attorney work-product doctrine. The question was generally not whether the communications were protected, but whether the protection had been waived.
Typically, the issue arose in the context of attorney-prepared compilations of facts, documents or deposition excerpts that had been provided to, and reviewed by, experts prior to their testimony. It was generally agreed that counsel's collation of facts, documents, or deposition excerpts represented core work-product. Nonetheless, many courts concluded that the act of showing the protected collation to the expert — in light of Federal Rule of Evidence 612, which permits their disclosure — effected a waiver of the work-product protection.
Fed.R.Evid. 612 provides that "if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon and to introduce in evidence those portions which relate to the testimony of the witness." Although Rule 612 is a rule of evidence and not a rule of discovery, it does give rise to Rule 34 document requests and creates a tension between liberal discovery rules and work product protection.
See, e.g., James Julian, Inc. v. Raytheon Co, 93 F.R.D. 138, 144 (D.Del. 1982) (binders of discovery organized and presented by counsel to expert ordered disclosed); Marshall v. United States Postal Service, 88 F.R.D. 348, 350 (D.D.C. 1980) (unsigned draft affidavit used at deposition; disclosure assumed to be proper); Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs., Inc., 81 F.R.D. 8, 9-11 (N.D.Ill. 1978) (disclosure compelled where deponent prepared by consulting a file consisting of his correspondence with counsel); Prucha v. M N Modern Hydraulic Press Co., 76 F.R.D. 207, 209-210 (W.D.Wis. 1977); Boring v. Keller, 97 F.R.D. 404 (D.Colo. 1983). It might be noted that the first court to decide this issue after the adoption of Fed.R.Evid. 612 declined to order production only because the district judge believed that counsel would not have had reason to anticipate this development in the law. Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 616-17 (S.D.N.Y. 1977), rev'd on other grounds, 603 F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980).
In 1985, the Third Circuit rejected this waiver analysis in Sporck v. Peil, 759 F.2d 312 (3d Cir.), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985), reasoning that Rule 612 authorizes disclosure — not of the entire collation — but only those specific facts, documents or excerpts actually relied upon by the witness. The Third Circuit noted that opposing counsel could inquire as to which, if any, the expert had relied upon in preparing for testimony. The Sporck Court concluded that: "Rule 612, therefore, when properly applied, does not conflict with the protection of attorney work product of the type involved in this case." Id. at 318.
While Sporck was followed, see In Re Joint Eastern and Southern District Asbestos Litig., 119 F.R.D. 4 (E.D.N.Y. S.D.N.Y. 1988); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83 (M.D.N.C. 1987); Omaha Power District v. Foster Wheeler Corp., 109 F.R.D. 615 (D. Neb. 1986); Laxalt v. McClatchy, 116 F.R.D. 438 (D.Nev. 1987), it was also questioned, and its scope and viability were not altogether certain. See, e.g., Gould, Inc. v. Mitsui Mining Smelting Co., Ltd., 825 F.2d 676 (2d Cir. 1987); In Re San Juan DuPont Plaza Hotel Fire Litig., 859 F.2d 1007 (1st Cir. 1988).
B. New Rule 26(a)(2)(B): Automatic Waiver
Rule 26(a)(2) takes a different, pay-to-play approach to waiver — that is, the Rule makes waiver an unavoidable cost of putting an expert forward to testify. The lingering question concerns the extent of the waiver — namely, whether it applies to core work product. The answer to this question is significant because of the wide ranging expert discovery contemplated by the 1993 amendments. The Rule is not intended, and should not be construed, to do so.
Discovery beyond the mandatory expert disclosure (Rule 26(A)(2)) and beyond a testifying expert's deposition (Rule 26(b)(4)(A)) is contemplated and permitted by Rule 26(a)(5). Corrigan v. Methodist Hosp., 158 F.R.D. 54 (E.D. Pa. 1994). This discovery may include, for example: (i) documents provided by counsel to the expert and on which the expert considered in coming to his or her opinions, id. at 58 (pursuant to Rule 34 or 45); (ii) drafts of expert "reports and notes relied upon and made in preparation of completing the final reports." Caruso v. Coleman Co., No. 93-CV-6733, 1994 U.S. Dist. Lexis 18587, 1994 WL 719759 (E.D. Pa. Dec. 27, 1994) (pursuant to Rule 45; no showing of particularized need required); and (iii) other testimony given by the expert. All West Pet Supply Co. v. Hill's Pet Prods. Div'n, 152 F.R.D. 634, 639-40 (D.Kan. 1993) (pursuant to Rule 45).
Abandoning the prior focus on an expert's reliance on counsel-supplied materials or information, Rule 26(a)(2)(B) now mandates disclosure of all "the data or other information considered by the witness in forming the opinions" (emphasis added). The accompanying 1993 Advisory Committee Note observes that: "Given the obligation of disclosure, litigants should no longer be able to argue the materials furnished to their experts to be used in forming their opinions are protected from disclosure when such persons are testifying or being deposed" (emphasis added).
It is revealing that the Advisory Committee Note is phrased in terms of " materials," even though subdivision (a)(2)(B) is not expressly limited to "documents and tangible things," as is subdivision (b)(3), but speaks only generally, in terms of "data or other information" (a phrase that describes the type of subject matter transmitted, regardless of the method of transmittal). The Advisory Committee's reference to "materials" — together with its reference to what "litigants should no longer be able to argue" — suggests that the drafters' intent was to resolve the prior squabbling over the discoverability of the factual matter furnished by counsel to a testifying expert to permit the expert to form an opinion.
This would appear to be confirmed by (i) the scope limitation in the Rule to "data" and "information," both of which denote the factual underpinnings of an opinion, and (ii) the qualification in the Rule that disclosure applies to those data " considered by the witness in forming the opinions." The " considered" criterion in the Rule replaced the case law's prior reliance requirement in an attempt to avoid experts' burying relevant but adverse information through the mental gymnastic of deciding that they did not rely on it. (No solution is perfect: the only information currently disclosable is that which the experts decide they have "considered.")
Nothing in the Advisory Committee Note or in the text of the Rule reflects any intention to abrogate the protection afforded core work-product. On a fair reading of the Rule, attorney-expert mental-impression communications are outside the scope of " data or other information considered by the witness in forming the opinions" for two reasons. First, mental-impression communications do not constitute " data or other information" within the meaning of Rule 26(a)(2)(B). "Data" and "information" connote subjects that are factual in nature, not ephemera like "mental impressions, conclusions, opinions or legal theories" of the sort protected by Rule 26(b)(3). Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995). Second, it is in any event not the communications themselves but the subject matter that has been communicated which might be considered " in forming the opinions." This distinction is consistent both with the language and with the approach of the Third Circuit in Sporck. Under each of these approaches, nothing prevents discovery into the bases of the expert's opinions, yet core work-product remains protected.
C. Rule 26(b)(3) vs. 26(b)(4): The Law of Unintended Consequences
Under one analysis, the amendment of Rule 26(b)(4) could have the unintended consequence of eliminating any protection for core work product at an expert's deposition. This possible result is a product of the uncertain relationship between Rule 26(b)(3), which was not amended in 1993, and Rule 26(b)(4), which was amended — most prominently to permit depositions as of right following the filing of an expert's Rule 26(a)(2)(B) report.
Rule 26(b)(3) is set forth in note 8, supra.
Fed.R.Civ.P. 26(b)(4) provides:
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.
(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
Rule 26(b)(3) distinguishes between ordinary work-product (first sentence) and core work-product (second sentence). Ordinary work-product is defined to include otherwise-discoverable documents and things prepared in anticipation of litigation; discovery is permitted only upon a showing of "substantial need." Core work-product consists of "mental impressions, conclusions, opinions, or legal theories of an attorney," and discovery is not permitted even upon a showing of substantial need. Rule 26(b)(3) contemplates "discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of [Rule 26]." It contains no reference to discovery of oral discussions between counsel and expert. At the same time, it incorporates the limitation imposed in Rule 26(b)(1) that appropriate matters for discovery are those that are "not privileged." Sometimes attorney work-product is casually said to be a Rule 26(b)(1) "privilege" ( see, e.g., Vermont Gas Sys. v. United States Fid. Guar. Co., 151 F.R.D. 268, 274 (D.Vt. 1993)), but it is more precise to consider it unprivileged matter the discovery of which is governed by Rule 26(b)(3). See, e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) (Rule 26(b)(3) "creates a form of qualified immunity from discovery for [attorney workproduct] materials, . . . but does not label them `privileged and, thus, outside the scope of discovery under Rule 26(b)(1)").
Fed.R.Civ.P. 26(b)(1) provides that: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . ." (emphasis added).
An argument might be made that, since oral communications are not covered by the express terms of subdivision (b)(3), they are unprotected "unprivileged" matter ripe for discovery. The more accurate interpretation is that subdivision (b)(3) does not fully codify the Hickman/Upjohn protection but is limited to documents and tangible things. See note 18, infra.
The interpretive wrinkle relating to waiver lies at the beginning of the first sentence of Rule 26(b)(3), which reads: "Subject to the provisions of subdivision (b)(4) of this rule. . . ." Under the 1993 amendments, Rule 26(b)(4)(A) is now the provision that confers the right to depose experts. An argument can be made that: (i) the "[s]ubject to" language applies to both the first and second sentence of subdivision (b)(3), and (ii) this means that there is no protection for core work-product at an expert's deposition.
This reading would be consistent with the interpretation of some courts construing the prior version of subdivisions (b)(3)-(4) to mean that "all communications from counsel to a testifying expert that relate to the subjects about which the expert will testify are discoverable" — even core work-product. See, e.g., Intermedics v. Ventritex, Inc., 139 F.R.D. 384, 388-89 (N.D.Cal. 1991). This result is understandable from a policy perspective, especially in a patent case like Intermedics, the concern being that counsel's influence on the witness ought to be aired. The Intermedics line of authorities was, however, rejected by many courts, including the sole Circuit-level authority interpreting these Rules prior to December 1, 1993. See, e.g., Bogosian v. Gulf Oil Corp., 738 F.2d 587, 594 (3d Cir. 1984) ("The [subject-to] proviso does not limit the second sentence of Rule 26(b)(3) restricting disclosure of work-product containing `mental impressions' and `legal theories'").
In the first reported decision on the issue under the 1993 amendments, the Western District of Michigan similarly rejected the Intermedics reading and held that core work-product remains protected under Rule 26(b)(3). Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995) (also reaching the same conclusion under Rule 26(a)(2)(B), as discussed above). The court in Haworth reasoned that the "subject to" language in subdivision (b)(3) requires that subdivision (b)(4) state a different and overriding standard if the normal work-product test is not to apply (as, e.g., subdivision (b)(4)(B) does with respect to non-testifying experts).
I can find nothing in any version of subdivisions (b)(3) and (b)(4), or the committee notes, that suggests core attorney work product was discoverable under subdivision (b)(4). Because there was no standard for core work product in subdivision (b)(4) that was different from the one in subdivision (b)(3), this Court concludes that the protection accorded an attorney's mental impressions and opinions by the Supreme Court in Hickman v. Taylor, and substantially codified in 1970 in Rule 26(b)(3), was intended to apply to discovery from experts.
(Emphasis added; citations omitted.)
The Haworth approach is not only consistent with a fair reading of subdivisions (b)(3) and (4) but also carries with it three added benefits. First, it does not favor wealthy parties who can afford to hire both testifying and non-testifying experts and thereby largely avoid the issue. Second, it does not encourage counsel and experts to engage in coy or strained conversations cloaked as "hypothetical" to avoid discovery. Third, it avoids a potential challenge to Rule 26(a)(2)(B) under the Rules Enabling Act, 28 U.S.C. § 2074(b), described below.
D. Rules Enabling Act Implications
If Haworth is incorrect in its interpretation of Rule 26(a)(2)(B), the question arises whether the Rules have been adopted in a form that has the effect of "abolishing or modifying any evidentiary privilege," which is prohibited — absent affirmative Congressional action — by the Rules Enabling Act, 28 U.S.C. § 2074(b), a provision that has never been the subject of a reported opinion. Under this interpretation, Rule 26(a)(2)(B), alone or in conjunction with Rules 26(b)(3)-(4), makes waiver of core workproduct an unavoidable cost of putting an expert forward to testify. If core work-product is an "evidentiary privilege," and if mandating the waiver of this "evidentiary privilege" constitutes "abolishing or modifying" it, § 2074(b) has to that extent been contravened and Rule 26(a)(2)(B) is to that extent invalid. Because § 2074(b) has not been construed, the meaning of these operative phrases is not settled.
28 U.S.C. § 2074(b) provides: "Any such rule [of procedure or evidence] creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress."
Within the confines of the Federal Rules of Civil Procedure, attorney work-product is sometimes said to be a Rule 26(b)(1) "privilege," Vermont Gas Sys. v. United States Fid. Guar. Co., 151 F.R.D. 268, 274 (D.Vt. 1993). As an interpretative matter, however, that it probably wrong since — focusing on Rules 26(b)(1) and (3) — it is more precise to consider work-product unprivileged matter the discovery of which is governed by Rule 26(b)(3). Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). However, (i) the meaning of "unprivileged" in Rule 26(b)(1) is not necessarily the obverse of the phrase "evidentiary privilege" as used in § 2074(b), and (ii) Rule 26(b)(3) does not fully codify the work-product protection recognized in Hickman. See, e.g., MOORE's FEDERAL PRACTICE ¶ 26.15[1] at 26-292, 26-293 (1995). Among other things, it is limited to documents and tangible things.
E. Expert Disqualification: Impact of Mandatory Disclosure
Occasional motions seek to disqualify an expert because of his or her prior affiliation with the adverse party. The ground for disqualification is often attorney work product (sometimes mischaracterized as privilege) or fundamental fairness. To the extent that the 1993 amendments to Rule 26(a)(2) render discoverable everything given or said to an expert — i.e., eliminate any protection for core work product — that argument would appear to be undercut. To the extent that the 1993 amendments leave core work product protected, this ground of expert disqualification would remain intact. See Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994) (disqualifying expert; relying on pre-December 1, 1993 precedent).
III. Scope of Expert Disclosure Obligations
A. Opinion Witnesses: Expert vs. Lay Testimony
Rule 26(a)(2)(B) requires disclosure of all opinions to be expressed by an expert witness, the basis for those opinions, all information considered in forming the opinions and all exhibits to be used as a summary of, or support for, the opinions. That does not necessarily include everything that the expert knows or about which he or she may testify. In the circumstances, the expert may know impeaching facts or have important non-expert opinions. The expert disclosure requirements do not clearly extend to testimony of this sort, or to attendant exhibits.
1. Rule 701 vs. Rule 702 Opinions
Rule 701 of the Federal Rules of Evidence, which is entitled "Opinion Testimony by Lay Witnesses," codifies the common law collective-facts doctrine and permits non-expert witnesses to offer opinions "which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony." Some decisions construing this Rule permit "lay opinion as to technical matters such as product defect or causation," provided that it "derive[s] from a sufficiently qualified source as to be reliable and hence helpful to the jury." Asplundh Mfg. Div. v. Benton Harbor Engineering, 57 F.3d 1190 (3d Cir. 1995). In Asplundh, the Third Circuit held that " a lay witness with first-hand knowledge can offer an opinion akin to expert testimony in most cases, so long as the trial judge determines that the witness possesses sufficient and relevant specialized knowledge or experience to offer the opinion") (emphasis added).
Rule 26(a)(2)(B) requires that the report of any expert witness "shall contain a complete statement of all opinions to be expressed" (emphasis added). The reach of this broad language is not altogether certain even as to expert testimony (specifically as regards the amount of detail that must be contained in report), much less as to non-expert testimony. "[A]ll opinions" could be construed to require disclosure of Rule 701 opinions as well, but that is by no means certain in light of the structure of the Rule. Subdivision (a)(2)(B) incorporates by reference Rule 26(a)(2)(A), which describes expert testimony as that offered pursuant to Rules 702, 703 and 705. Arguably the opinions that must be disclosed are the opinions that fall within this category. Both subdivision (a)(2)(B) and the 1993 Advisory Committee Note repeatedly refer to "expert testimony" and "experts."
Nor is it clear that it makes sense to require disclosure of all Rule 701 opinion testimony, at least not the traditional types that (i) are little more than descriptions of commonplace experience ( e.g., age, handwriting, physical expression or condition) and (ii) expedite or illuminate fully disclosed testimony.
The problem cases are those in which the 701 opinions are essentially expert testimony offered in a field in which the expert has not been disclosed or may not be fully qualified. Some cases have indicated that witnesses not disclosed as experts — or, if disclosed in certain areas, not disclosed in the one in dispute — may be permitted to testify to undisclosed Rule 701 opinions. See, e.g., United States ex rel. Jervis B. Webb Co. v. Gust K. Newberg Constr. Co., 1995 U.S. Dist. Lexis 8730 at *5-*6, 1995 WL 383133 at *2 (N.D. Ill. June 20, 1995); Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995), discussed in § III(C), infra.
This is problematic for four reasons. First, the line between Rule 701 and 702 testimony, on the Asplundh analysis, is not always easy to draw. Second, once it is drawn, there is no good reason to allow what is essentially surprise expert testimony. Third, the dichotomy encourages litigants to attempt to circumvent expert disclosure and discovery by the sheer expedient of witness labeling. Fourth, if a true lay witness were giving the Rule 701 opinion, he or she would have to be designated in a Rule 26(a)(1)(A) disclosure (at least as supplemented pursuant to Rule 26(e)(1)), or the testimony would presumptively be excluded by Rule 37(c)(1). Designation of an expert under Rule 26(a)(2) is not a substitute — on the contrary, it serves to camouflage the fact that the witness has other testimony to offer. To the extent that no disclosure has been made with respect to a opinion testimony of an expert witness, the Court should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process.
It should be noted that Asplundh extended the application of the trial judge's gatekeeping responsibilities under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), to Rule 701 witnesses to avoid circumvention of the policy goals identified by the Supreme Court with respect to Rule 702 experts. A similar approach requiring Rule 26(a)(2)-type disclosures should be incorporated into pretrial orders, and parties should routinely request this information in discovery.
2. Expert Opinion vs. Factual Testimony
Two recent court of appeals decisions highlight types of factual testimony that an expert may be permitted to give despite the absence of prior disclosure. The Fifth Circuit has held that a trial judge properly admitted an expert's testimony (not previously disclosed) that certain photographs of the accident site offered by the adversary were misleading. Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995). The Hester Court emphasized that the witness had surveyed the scene and thus had personal knowledge of the matters depicted. It noted that "even a layperson may testify to the accuracy of a photograph of a scene that he has personally viewed" — stated another way, this was either a purely factual observation or no more than a conventional Rule 701, not a Rule 702, opinion. While on the facts of Hester, the result may be appropriate, the approach raises the previouslydiscussed possibility of parties attempting to circumvent their expert disclosure obligations by labeling some opinions non-expert in nature.The Seventh Circuit has similarly ruled it error to exclude the impeaching, factual testimony of an expert witness who has personal knowledge (in this case, as an employee of a party) of facts that impeach the underpinnings of an opposing expert's opinion. DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 686 (7th Cir. 1995) (harmless error to exclude testimony). In DeBiasio, the excluded testimony consisted of authentication of an object about which the opposing expert opined and which on its face refuted the opinion. The DeBiasio Court reasoned that Rule 26(a)(3) protected the impeachment evidence from disclosure. Id. Had the proponent attempted to go further and offer opinions as to the significance of the condition of the object, that testimony would presumably have been excluded under Rule 37(c)(1) because it had not been disclosed under subdivision (a)(2)(B) or (C). DeBiasio highlights the necessity of distinguishing between factual impeachment testimony, which need not be disclosed under Rule 26(a)(3), and opinion contradiction or rebuttal testimony, which must be disclosed under Rule 26(a)(2)(C).
B. Rebuttal vs. Impeachment Testimony: Rule 26(a)(2)(C) vs. Rule 26(a)(3)
Textual Comparison. Rule 26(a)(2)(C) requires responsive disclosures when a party intends to elicit expert testimony " solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B)" (emphasis added). In contrast, Rule 26(a)(3) carves out from mandatory non-expert disclosure "evidence that [a party] may present at trial other than solely for impeachment purposes" (emphasis added).
Rule 26 contains no definitions and makes no effort to distinguish between contradiction or rebuttal evidence, on the one hand, and impeachment evidence on the other. The distinction can be elusive, depending on the facts. In common legal parlance, rebuttal is substantive evidence that is "introduced to contradict a specific point in the [opponent's] evidence" ( People v. James, 123 Ill.2d 523, 550, 124 Ill.Dec. 35, 47, 528 N.E.2d 723, 735 (1988)) — evidence "which becomes relevant because of proof introduced by the adverse party" ( Crussel v. Kirk, 894 P.2d 1116, 1119 (Okla. 1995)). In contrast, impeachment evidence "call[s] in question the veracity of a witness" ( Kennemur v. State, 133 Cal.App.3d 907, 921, 184 Cal.Rptr. 393, 401 (1982), quoting BLACK'S LAW DICT. 886 (5th ed. 1979)). There is little point in attempting to resolve the potential conflict between Rule 26(a)(2)(C) and Rule 26(a)(3) on a purely linguistic basis, however, because there can be "but slight difference between impeachment, that [someone] was not a credible witness, and rebuttal, that [he did] not [do something] as he testified. . . ." People v. Blake, 179 Ill.App.3d 249, 258, 128 Ill.Dec. 233, 239, 534 N.E.2d 415, 421 (1989).
Reconciling Subdivisions (a)(2)(C) and (a)(3). Rule 26(a)(2)(C) and (a)(3) are reconcilable on three levels: First, Subdivisions (a)(2) and (a)(3) state independent disclosure obligations. Subdivision (a)(2) is the provision specifically directed at expert opinion; subdivision (a)(3) covers experts only generically and indirectly (as witnesses to be identified or deponents whose transcripts are to be designated). Nothing in subdivision (a)(3) purports to circumscribe the disclosures required in subdivision (a)(2).
Second, there is no conflict between the subdivisions to the extent that an expert opinion is not offered solely for impeachment purposes (it rarely is — see the learned-treatise discussion below); subdivision (a)(3) carves out only pure impeachment evidence.
Third, even if an expert were to offer testimony solely for impeachment purposes, that would not create a conflict between these provisions to the extent that the expert's testimony is factual, and not in the nature of expert opinion.
This reconciliation can be illustrated with a pair of hypotheticals.
Illustration No. 1: Learned Treatise Impeachment (Rule 803(18)). Fed.R.Evid. 803(18) permits a party to cross-examine an expert witness using learned treatises that may be authenticated by the cross-examining party's own expert. May the cross-examining party's expert authenticate a treatise as reliable at trial if the expert was silent on the subject in his or her Rule 26(a)(2) disclosures?
Rule 803(18) excludes from operation of the hearsay rule:
Learned treatises. — To the extent called to the attention of an expert witness upon crossexamination . . ., statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority . . . by other expert testimony. . . .
On a strict reading of Rule 26(a)(2), the answer is No because the authentication consists of an expert opinion — namely, that the treatise is reliable — and subdivision (a)(2)(B) requires that the mandatory report "contain a complete statement of all opinions to be expressed" (emphasis added). At a minimum, this opinion should be in a subdivision (a)(2)(C) rebuttal or a subdivision (e)(1) supplement.
Rule 26(a)(3) does not lead to a different result. Learned treatise evidence under the Federal Rules is not offered solely for impeachment purposes. "It is important to remember that statements in learned treatises come in for their truth; . . . they are not limited to impeaching credibility, but can be used for the truth of the matters stated." 3 S. Saltzburg, M. Martin D. Capra, FEDERAL RULES OF EVIDENCE MANUAL 1433 (6th ed. 1994). Nor should counsel be permitted to avoid disclosure obligations by claiming that he or she is not offering the treatise for all purposes but only to impeach. Illustration No. 2: Attack on Scientific Methodology Per Daubert v. Merrell Dow. A planned attack on scientific methodology which, under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), is a Rule 104(a) question for the Court and not the jury. Under Rule 104(a), the Court may consider any inadmissible, unprivileged evidence, such as an affidavit. Can a party submit an affidavit that attacks an opposing expert's methodology and is executed by an expert who has not made a disclosure? Or whose disclosure does not contain the attack?
There is no need to make it clear in the authenticating disclosure that a treatise is being authenticated for cross-examination purposes or even with reference to the particular point for which counsel may wish to use it. That is purely a matter of style in fashioning the disclosure.
It would appear that the Rules did not contemplate the circumstance in which an expert has not made a disclosure and is not otherwise expected to testify yet submits an affidavit in an effort to preclude other expert testimony. Arguably, such a person (1) is a non-testifying expert within Rule 26(b)(4)(B) since he or she is "not expected to be called as a witness at trial," and (2) is not "a witness who is retained . . . to provide expert testimony in the case" within the meaning of Rule 26(a)(2)(A). Even if the expert did submit a disclosure on other topics, as long as the proponent challenges the methodology only on an affidavit to the Court, and not through testimony before the jury, the absence of disclosure would not seem to trigger the strict requirements of the Rules.
Usually, the opponent of the evidence will want to continue the attack on methodology before the jury — the focus there will be credibility — and the opponent will be precluded from doing so in the absence of a disclosure because the attack does require the statement of an opinion as to which there will be testimony in front of the jury, thus clearly triggering Rule 26(a)(2)(C). Hence, this scenario is unlikely to occur at least in jury cases. In any event, nothing would prevent the judge from insisting upon the affying expert's appearance in court sua sponte or at the behest of a party.
C. Treating Physicians: Disclosure Issues
The 1993 Advisory Committee Note considers that a treating physician is not, in the words of Rule 26(a)(2)(B), "retained or specially employed to provide expert testimony" — that his or her testimony simply follows from the care afforded to the patient in ordinary course. The Advisory Committee therefore concludes that a treating physician "can be deposed or called to testify at trial without any requirement for a written report" that satisfies Rule 26(a)(2)(B). Accord Harlow v. Eli Lilly Co., No. 94 C 4840, 1995 U.S. Dist. Lexis 7162 at *8-*9, 1995 WL 319728 at *3 (N.D.Ill. May 23, 1995).
Nondisclosure may be limited, however, to circumstances in which the treating physician confines his or her testimony to the care and treatment afforded to a party: "To the extent that the treating physician testifies only as to the care and treatment of his/her patient, the physician is not to be considered a specially retained expert notwithstanding that the witness may offer opinion testimony However, when the physician's proposed opinion testimony extends beyond the facts made known to him [or her] during the course of the care and treatment of the patient and the witness is specially retained to develop specific opinion testimony, he [or she] becomes subject to the provisions of Fed. R Civ. P. 26(a)(2)(B)." Wreath v. United States, 161 F.R.D. 448 (D. Kan. 1995); accord Harlow v. Eli Lilly Co., 1995 U.S. Dist. Lexis 7162 at *9-*10, 1995 WL 319728 at *3.
The result in Wreath and Harlow appears to be correct, but the cases raise two important questions. First, is the treating physician free to offer any opinions that are based solely on "the facts made known to him [or her] during the course of the care and treatment," even if the opinions are not essential to care and treatment — e.g., that a diagnosed condition is attributable to a particular, allegedly toxic substance — as long as the physician has not been "specially retained" to develop that opinion? At a minimum, it must mean that, in a personal injury case, a treating physician is at liberty to opine as to the permanency of injury because, absent that, the exception would be swallowed up by the rule.
Second, what exactly does "specially retained . . . to provide expert testimony" mean? No doctor is going to testify without an assurance of payment — hence, some sort of retainer is always present. Presumably, the distinction being drawn is between a physician who has cared for a patient and one who has not (the stereotypical hired gun). While even this distinction is subject to manipulation (since a patient can always start treating with a new, lawyer-suggested doctor), it is something of a bright line with which to begin the analysis. A treating physician may be called to testify as to any of a broad range of opinions, from the patient's initial condition to a treated injury's projected permanency to arcane questions of epidemiology. Wreath and Harlow explain that, if the treating physician crosses the line and becomes a hired gun, Rule 26(a)(2)(B) disclosure obligations kick in. If, in the circumstances, the Court should conclude that necessary disclosure was not made, preclusion of the offending opinion under Rule 37(c)(1) is the presumptive sanction.
IV. Right to Offer Expert Rebuttal Testimony
A. Supplemental vs. Rebuttal Experts
Subdivision (a)(2)(C) contemplates the designation of new witnesses, but only to the extent that they are to offer rebuttal evidence, not merely to "supplement the prior opinions" of timely-disclosed (a)(2)(B) experts. In other words, subdivision (a)(2)(C) is not designed as an avenue for the untimely designation of (a)(2)(B) experts. Fuller v. Volvo GM Heavy Truck Corp., No. 92 C 1797, 1995 U.S. Dist. Lexis 11638 at *5, 1995 WL 489542 at *2 (N.D.Ill. Aug. 14, 1995).
B. Rebutting Non-Adverse Parties
At least one court has raised, but not answered, the question whether the plaintiff may offer expert testimony to rebut that offered by a third-party defendant against whom the plaintiff has not asserted a direct claim. Fuller v. Volvo GM Heavy Truck Corp., 1995 U.S. Dist. Lexis 11638 at *6-*7, 1995 WL 489542 at *2-3. The Rule does not make a distinction between adverse and non-adverse parties (it refers only to "another party") — but that does not mean that the distinction is not implicit in the meaning of "to contradict or rebut." See § III(D), supra.
C. Right to Name Rebuttal Experts: Silence of Pretrial Order
It is not uncommon for pretrial orders to set sequential dates for first the plaintiff and then the defendant to identify their respective experts — and for the order not to specify a date for the plaintiff to identify new rebuttal witnesses on rebuttal. There is a split of authority as to whether, in these circumstances, the plaintiff may designate a rebuttal witness absent leave of court — but the designations are in any event being permitted, as they should be, unless and until the preclusion issue is one on which the Court and parties have focused or of which they are aware.
Compare IBM Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421 at *2 (N.D. Cal. March 15, 1995) (held, where a pretrial order is silent as to rebuttal expert reports, the Rule provision permitting rebuttal designation is overridden all expert testimony must be exchanged at the specified time; nonetheless permitting the offending party to add two of six proposed "rebuttal" witnesses) with Knapp v. State Farm Fire Cas. Co., No. 94-2420-EEO, 1995 U.S.Dist.Lexis 7830 at * 4, 1995 WL 340991 at *2 (N.D.Ill. May 31, 1995) (where the pretrial order set deadlines for designating expert testimony but did not specifically address rebuttal, the Rule's thirty-day default provision kicked in and the plaintiff was free to identify new rebuttal witnesses for 30 days after the defendant's Rule 26(a)(2)(B) disclosure); accord Fuller v. Volvo GM Heavy Truck Corp., No. 92 C 1797, 1995 U.S. Dist. Lexis 11638 at *5-*6, 1995 WL 489542 at *2 (N.D.Ill Aug. 14, 1995) (same result; no analysis).
V. Abusive Supplementation
A. Supplementation Duty Scope and Standard. The Rule 26(e) duty to supplement has been broadened and the scope expanded to include the new disclosure obligations. The former "knowing concealment" standard has been abandoned. A party is instead obliged to amend any disclosure, any expert report or deposition, and any response to any interrogatory, request for production or request for admission, if it is later deemed "incomplete or incorrect." Fed.R.Civ.P. 26(e)(1). The duty to supplement has been expanded to apply " both to information contained in the [expert's] report and to information provided through a deposition of the expert" (emphasis added).
Timing. Rule 26(e)(1) requires that "any additions or other changes . . . shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due" (emphasis added) — i.e., at least 30 days before trial, unless otherwise directed by the Court. In most cases, the pretrial disclosures required by Rule 26(a)(3) are otherwise directed by the Court because they are contained in its pretrial order. Therefore, any supplementation of expert disclosure or testimony is due by the date of the pretrial order. Since the key is the disclosure made by each party, that date — for supplementation purposes — would seem to be the date that the pretrial order is finalized by the parties and presented to the Court, not the date that the Court executes it.
Consequently, the most propitious time for a party to supplement its expert disclosure is on the date of the pretrial order. That will prevent timely rebuttal by an adversary.
B. Potential Abuses
This disclosure, deposition and supplementation regimen affords opportunities for abuse — that is, for untimely disclosure made with the intent, or having the effect, of prejudicing an opponent's trial preparation. For example, an incomplete disclosure can be very materially supplemented at a deposition in ways that effectively preclude effective preparation for the deposition — e.g., by the addition of previously-undisclosed opinions. Alternatively, a party can intentionally submit an omissive disclosure and only after any deposition has been taken supplement to add new and different opinions.
C. Assessing Abuse
In deciding whether a party's supplementation of its disclosures after the conclusion of discovery, or of expert discovery, is fair in the circumstances, the Court should consider several factors:
• Good Faith. The good faith, willfulness or negligence of the proponent in failing to make the disclosure in a timely fashion.
• Availability of Information. Whether the information was or should have been available earlier to the proponent or the opponent.
• Prejudice. The prejudice to the adversary, which will include review of such issues as:
— Time remaining prior to trial.
— The importance of the disclosure.
— The ability to cure the default, as by continuing the relevant court date and/or re-opening discovery.
D. Remedies
The remedy for dilatory disclosure should fit the facts. In addition to or in lieu of other sanctions (§ I(B), supra), potentially abusive behavior of this sort can be checked by reopening discovery, by assessing additional costs caused by this behavior, in exacerbated cases by striking the party's original disclosure and the testimony — generally by resort to the powers vested in the Court under Rules 37(a) and (c).