Resolving Daubert Challenges
Rule 26(a)(2)(B) Disclosures -- The Report
In all civil actions in federal court, Fed. R. Civ. P. 26(a)(2)(B) requires that certain expert-related material be provided ("disclosed") to the other parties. The material to be provided by each expert is known as the expert's "report," and it must be disclosed on the proponent's own initiative, without the need for any discovery requests. Although the district courts have some discretion to adjust the specific requirements of Rule 26 in particular cases, the terms of the rule govern to the extent not modified by judicial order, and most litigants strive to adhere in good faith to the rule's terms, because under Fed. R. Civ. P. 37(c)(1), the sanctions for nondisclosure include prohibition against use of the undisclosed testimony at trial (unless the nondisclosure was "harmless").
What Experts Are Covered?
The report requirement applies to any "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."
This description does not embrace all testimonial experts. According to the Advisory Committee Notes to the 1993 amendments to Rule 26, a treating physician, for example, "can be deposed or called to testify at trial without any requirement for a written report." The same may be true of regular employees whose normal duties do not involve giving expert testimony. In doubtful cases, of course, the careful litigant will seek clarification before assuming that an expert falls outside the rule's report requirement. Litigants should also remember that the rule does not bar discovery, or the imposition of disclosure requirements, for experts outside its scope. Consequently, if the adversary may rely on experts to whom the disclosure obligations of Rule 26(a)(2)(B) do not facially apply, the litigant may wish to take discovery regarding such experts, and/or seek a judicial order requiring that such experts comply with the rule's disclosure provisions. The litigant is aided, in seeking such discovery, by the requirements of Rule 26(a)(2)(A), which mandate disclosure of 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." This requirement to disclose the "identity" of witnesses offering expert testimony applies to all party experts, whether the report requirement applies to them or not.
Of course, none of the party disclosure rules applies to expert witnesses appointed by the court under Fed. R. Evid. 706, who are required only to "advise the parties of the witness' findings."
Who Writes and Signs the Report?
The report, where required, must be "prepared and signed by the witness." The 1993 Advisory Committee Notes say that this requirement "does not preclude counsel from providing assistance to experts in preparing the report." As one example of experts who may require such assistance, the Notes mention "automobile mechanics." After Daubert, however, the truth is that even the best-educated and most literate of experts will need to confer with counsel to ensure that their reports satisfy Daubert's requirements. The bottom line, according to the Notes, is that the report "should be written in a manner that reflects the testimony to be given by the witness" at trial -- a prescription that makes lawyerly participation a virtual requirement.
Still, in assisting experts in the preparation of their reports, counsel should resist any temptation to author the report themselves. Lawyerly authorship presents too great a danger that the expert will not "own" the report when it comes time to testify. It is also generally ruinous to an expert's credibility, both before the jury and for Daubert purposes, when it emerges (as it will) that the expert's report was ghostwritten, in whole or in part, by some attorney. Real experts don't hire lawyers to draft their findings. It is one thing, then, to work closely with the expert to ensure that the report addresses all the relevant issues in a helpful and perspicuous way. It is another to turn the expert into a shill. See Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291-95 (E.D. Va. 2001) (ghostwriting versus editing and other forms of assistance).
Counsel should be mindful, in this context, that communications with testimonial experts are not generally privileged. In most circuits, such communications have long been discoverable. And in the Advisory Committee Notes to the 1993 amendments to Rule 26, which first introduced the disclosure requirements under Rule 26(a), the drafters observed: "Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions -- whether or not ultimately relied upon by the expert -- are privileged or otherwise protected from disclosure when such persons are testifying or being deposed."
Should the expert keep drafts of his or her report? The expert will commonly be advised to treat drafts however the expert normally does, consistent with the conventions prevailing in the expert's field. Whether this advice is consistent with law could be debated from now till doomsday. Arguably, for example, drafts are "information considered by the witness in forming the opinions " -- i.e., material that must be disclosed under Rule 26(a)(2)(B). Counsel, for their part, may well be under independent legal or ethical obligations not to destroy any drafts that the expert may transmit to them. Any drafts that are retained -- whether by the expert or by counsel, and whether on paper or in electronic form -- are potentially discoverable.
What Must the Report Contain?
The report must include six things:
When Must the Report Be Provided?
Unless the trial court orders otherwise (as trial courts commonly do), the report must be provided ninety days before trial, or, for experts whose testimony is intended solely to contradict or rebut other experts, within thirty days after the disclosure of the material to be rebutted.
To Whom Must the Report Be Provided?
Rule 26(a)(2) requires that the report be served on the "other parties" -- not just the adversary. The rule no longer requires that expert disclosures be filed with the court.
The Significance of the Report for Daubert Purposes
It used to be that litigants would attempt, so far as possible, to avoid disclosing the detailed substance of their experts' opinions until trial. It is a commonplace that under Rule 26(a)(2)(B), this is no longer a realistic option. The rule requires a "complete" statement of the expert's opinions, on pain of preclusive sanctions, and the courts take this requirement quite seriously. Most counsel now realize, therefore, that under Rule 26(a)(2)(B), the only safe course is full and detailed disclosure, in the report, of all opinions to which the expert is expected to testify.
But after Daubert, Rule 26(a)(2)(B) demands even closer attention, because the rule requires a "complete" statement not only of the expert's opinions, but also of the "basis and reasons" for them. The methods employed by the expert are naturally regarded as part of the expert's "basis and reasons" -- and of course those methods are the touchstone of reliability analysis under Daubert.
There are valid arguments that reports should not be required to establish all the predicates for their own admissibility. Rule 37's preclusive sanctions, for one thing, are arguably without legitimate application in this context -- there being no requirement that the predicates for admissibility be themselves admissible. Nor, for another thing, need experts necessarily lay the entire foundation for the admissibility of their own testimony. That foundation may come, at least in part, from other sources -- e.g., from an expert's professional colleagues. And certainly it cannot be expected that experts be psychic. After Daubert, the range of potential objections is far too broad for experts to anticipate them all.
Still, the Supreme Court has issued a clear warning that after Daubert, all litigants are on notice of the "exacting standards of reliability" that expert testimony must satisfy. And the Court has also said that litigants should not "initially present less than their best expert evidence in the expectation of a second chance should their first try fail." Thus the only safe course, after Daubert, is to include in the report a full and transparent recital of all significant methodological steps taken in the expert's analysis.
Virtue can be made of this necessity. The preparation of the report can serve as the occasion to spell out the bases for admissibility by specifying the expert's methods and analytical steps with rigor -- something experts will sometimes omit to do if left to their own devices.
Preparing the Report with Daubert in Mind
Just how "complete" need the recital of the expert's methodological steps be? There is no single general answer. The most common mistake may be to include too little, on the theory that more detail, if demanded, can always be supplied later. Maybe it can be, but counsel who defer a lucid statement of their experts' methodologies can expect to find themselves, and their experts, on the defensive. It is commonly best to provide a clear and comprehensive statement of the expert's work from the very beginning. This strategy permits any lacunae in the expert's reasoning to surface, and to be corrected, before the report is served. It is also immeasurably helpful to have the expert's reasoning spelled out fully in a carefully prepared document, as opposed to confronting the issue for the first time in deposition, where the adversary has control of the agenda, and where experts frequently express themselves in alarmingly improvisatory fashion.
That said, too much a totem should not be made of the word "complete." A good rule of thumb may be that the report should specify what the expert did with at least enough precision that another expert in the same field could duplicate the expert's work. When more detail helps to establish the expert's methodological bona fides, add it. Sometimes it will also make sense to anticipate obvious objections. If a technique is nonstandard, for example, it is often wise to specify the reasons for rejecting the standard technique, and to include bibliographic sources on the standard technique in the listing of materials the expert has "considered" (as opposed to "relied upon"). Likewise, if the expert views arguably pertinent data as unhelpful to the analysis, it will be often be desirable for the expert to explain why.
Meanwhile, as all this detail is supplied, counsel should take pains to ensure that the report remains legible, in the sense that an educated reader can follow the expert's reasoning without resort to material extrinsic to the report. If the proponent's counsel cannot understand the report on its face, it is unreasonable to expect that the judiciary will do much better. Legibility is primarily a matter of making sure the report is written lucidly and helpfully -- with signposting, definition of terms, and summaries of any arguments that may be too complex to absorb, all at once, in their detailed entirety. This will often require considerable effort, but the process will supply an important check on the defensibility of the expert's reasoning, as well as resulting, ideally, in a product that supplies a clear blueprint for its own admissibility -- both for the trial court and for any appellate tribunal. In the courts of appeal, especially, a legible report is invaluable, because there are frequently draconian page limits on appellate briefs, whereas the court of appeals is free to consult the factual record, including the expert reports, at unlimited length. If the expert's report persuasively defends its own methodological soundness, half the battle is won.