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Proposed Model Local Rule on Motions Involving the Admissibility of Expert Evidence -- Second Draft (8/20/04)

[No federal rule of civil procedure specifically governs motion practice relating to the admissibility of expert testimony.  Given the importance that Daubert motions can assume, and their frequently daunting complexity, this omission arguably should be remedied.  The following represents the second draft of a possible model local rule, on analogy with existing local rules in various federal district courts governing such matters as RICO claims and motions for summary judgment.  It is limited in scope to civil cases, and it is animated by the goals of defining procedural expectations, discouraging gamesmanship, affording standards of notice and due process, and promoting the just, speedy, and inexpensive resolution of expert evidentiary disputes.  The first draft was promulgated in August 2003 and drew little comment.  This second draft effects only minor revisions.  Language stricken from the first draft is crossed out; new language appears in blue.  Comments and suggestions are invited.]

(a)  Scope.  This rule governs all motions involving the admissibility of expert testimony in civil cases, except for testimony from experts not subject to the disclosure requirements of Fed. R. Civ. P. 26(a)(2).

(b)  Discovery Rules Unaffected.  Except as expressly provided herein, nothing in this rule affects the right of any party to propound or oppose any discovery under the applicable rules of civil procedure.

(c)  Contention Discovery Regarding the Admissibility of Expert Evidence.  Litigants are strongly encouraged to anticipate potential disputes involving the admissibility of expert evidence, through informal consultation or via appropriate discovery.  At any time after service of expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2), the party propounding the expert testimony may serve interrogatories seeking the information described in paragraph (d)(2) of this rule as it relates to potential objections to the expert's testimony (hereinafter "Rule 103 Interrogatories").  Rule 103 Interrogatories as defined in this rule shall enjoy a rebuttable presumption of permissibility.  If the responding party requires discovery or additional time to answer Rule 103 Interrogatories, the responding party shall so state in the party's responses, setting forth the discovery required or the reasons why additional time is necessary.  The duty of seasonable supplementation under Fed. R. Civ. P. 23(e) is applicable to responses to Rule 103 Interrogatories.

(d)  Motion Practice.

    (1)  Timing of Motions.  Except upon a showing of good cause, all motions relating to the admissibility of expert testimony shall be filed in sufficient time to avoid a delay of trial, and in any event by the deadline for pretrial disclosures under Fed. R. Civ. P. 26(b)(3) or such earlier deadline as the court may set, in its sound discretion and after sufficient time for discovery.

    (2)  Form and Content of Motions.  All pretrial motions relating to the admissibility of expert testimony shall disclose, with particularity: (i) the identity of each expert whose testimony is at issue; (ii) the specific portions of the expert's testimony to which the motion pertains; (iii) as to each such portion, all evidentiary rules and principles the specific legal and factual grounds on which the movant relies (e.g., "Fed. R. Evid. 702"; "the Dead Man's Statute"); (iv) any documentary materials on which the movant relies, appending such materials to the motion; (v) and the identity of any witnesses on whose testimony the movant intends to rely in connection with the motion.  If the movant intends to rely on the testimony of experts in support of the motion, the movant shall disclose the anticipated testimony of such experts to the same extent as required for testimonial experts under Fed. R. Civ. P. 26(a)(2).  Any witness whose identity is disclosed pursuant to this paragraph shall be subject to deposition in connection with the motion, except upon good cause shown.  Good cause may include a showing that the relevant expert witness has already been deposed on the issues posed by the motion.  The requirements of this paragraph apply even though the nonmoving party may have the burden of production or persuasion on the evidentiary issue in dispute.

    (3)  Form and Content of Responses.  A party responding to a motion under this rule shall disclose, with particularity: (i) any documentary materials on which the nonmoving party relies in support of the party's position, appending such materials to the response; (ii) the identity of any witnesses on whose testimony the responding party intends to rely in connection with the motion.  If the responding party intends to rely on the testimony of experts in responding to the motion, the responding party shall disclose the anticipated testimony of such experts to the same extent as required for testimonial experts under Fed. R. Civ. P. 26(a)(2).  Any witness whose identity is disclosed pursuant to this paragraph shall be subject to deposition in connection with the motion, except upon good cause shown.  Good cause may include a showing that the relevant expert witness has already been deposed on the issues posed by the motion.  The requirements of this paragraph apply even though the moving party may have the burden of production or persuasion on the evidentiary issue in dispute.

    (4)  Replies and Requests for Argument or Hearing.  The moving party shall be permitted to file a reply.  Within ten days from the service of such reply, or, if no reply is served, within ten days from the expiration of the deadline for reply, the moving and/or nonmoving parties may file a brief statement requesting oral argument or an evidentiary hearing or explaining why the party opposes hearing or argument.  Any such statement shall include a certification that the filing party has met and conferred with any opposing parties in an attempt to reach agreement on the the question of holding argument and/or an evidentiary hearing.  Failure to request argument or an evidentiary hearing pursuant to this rule shall be deemed a waiver of any right to such argument or hearing.  Whether or not any party requests an evidentiary hearing or argument, the court may convene them, or decline to do so, in its sound discretion.

(e)  Rulings on Motions.  The court, in its sound discretion, may adjudicate motions under this rule prior to trial, or may reserve ruling for trial.  The court shall address, in its ruling, the question whether its disposition is definitive within the meaning of Fed. R. Evid. 103(a).

(f)  Costs.  In connection with any motion to which this rule applies, the court may make an award of appropriate costs in its sound discretion, including costs of expert witness fees and expenses to the extent permitted under applicable law.

Advisory Committee Notes (2004)

    Subsection (a).  This rule is intended to apply only to experts subject to the disclosure requirements of Fed. R. Civ. P. 26(a)(2).  It is not intended to govern motions or discovery relating to the testimony of court-appointed experts.  Nor is it intended to apply to testimony by experts (e.g., treating physicians) from whom no expert report is required under Rule 26 (although the court retains its discretion to impose similar requirements for such other experts on a case-by-case basis).  Apart from the limitations just stated, the rule is intended to cover all motions relating to the admissibility of expert testimony in civil cases.  In particular, it is intended to govern not only motions addressing expert qualifications and methodology under Fed. R. Evid. 702, but also motions relating to relevance under Fed. R. Evid. 401, unfair prejudice under Fed. R. Evid. 403, or any other issue concerning the evidentiary admissibility of expert testimony.  Issues of reliability are frequently closely intertwined with questions of relevance and prejudice, and judicial efficiency will be promoted if all disputes involving a given expert's testimony are addressed through a common format and under common guidelines, so that parties cannot hope to gain procedural advantage depending on how they elect to characterize the bases for their requested relief.

    Subsection (b).  The discovery for which this rule provides is not intended to affect the parties' rights to conduct different or additional discovery.  The intent of this rule is to create a strong but rebuttable presumption that discovery falling within its scope will be permissible.  Motions addressed to the admissibility of expert evidence have assumed central importance in modern litigation, and rulings on such motions frequently have dispositive consequences.  They should no more be conducted via ambush or surprise than should a trial.  Fair and efficient adjudication of issues involving expert evidence will be promoted if the parties are permitted and encouraged to exchange accurate and pertinent information in advance, before the issues are litigated.  The requirements of Rule 26(a)(2) already facilitate such disclosures by the proponents of expert evidence.  The factual and legal bases for objections to expert testimony, however, are frequently just as voluminous, technical, and complex as the challenged expert testimony itself, and often they are not easily foreseen.  Standing alone, Rule 26(a)(2) does not necessarily elicit disclosures by the objecting party of the bases for the party's objections, because under Fed. R. Evid. 104(a), challenges to admissibility need not necessarily be founded, in whole or in part, on expert testimony that would itself be admissible at trial.  The discovery permitted under this rule would be authorized, even in the rule's absence, by the Federal Rules of Civil Procedure, but in the interests of timely and reciprocal disclosure, it should specifically enjoy presumptive legitimacy.  The court retains its discretion to regulate discovery under this rule when the circumstances of the particular case so require.

    Subsection (c).  The reference to Fed. R. Evid. 103 is merely intended to indicate, in summary fashion, that one primary purpose of Rule 103 Interrogatories is to secure disclosure of the "specific ground" for evidentiary objections that is required to preserve error under Rule 103(a).  Disclosure going beyond Rule 103(a)'s bare requirements, and more closely approximating the detail and transparency required in formal expert reports, will generally be appropriate.  Evasive or incomplete disclosures should not be countenanced, and sanctions potentially including the preclusion of specified evidentiary objections may be warranted where a litigant has intentionally disregarded its duty to give a full response to discovery propounded under this rule.

    Subsection (d)(1).  Although Fed. R. Evid. 103(a) could be read to suggest that objection at trial is sufficient by itself to preserve error, the interests of orderly adjudication are better served, in general, if the court's authority to establish pretrial deadlines is specifically invoked for disputes relating to the admissibility of expert testimony.  In light of the early disclosures afforded under Fed. R. Civ. P. 26(a)(2) and under this rule, it should generally be possible to resolve such motions in sufficient time to avoid delay of trial.  The court retains wide discretion in scheduling its pretrial proceedings on these and other matters.

    Subsection (d)(2).  The moving party's initial motion papers should identify with particularity the specific testimony at issue and all legal and factual grounds on which the testimony is challenged.  Motions to strike an expert's testimony in its entirety remain permissible, but under this rule, the legal and factual basis of an evidentiary challenge must be specified for each portion of the testimony challenged, with sufficient clarity to afford notice to the respondent of which grounds apply to which specific portions of the testimony.  This requirement is satisfied if each challenged portion of the testimony is identified by quotation or pinpoint citation (e.g., page and line number) and legibly associated with each legal and factual basis for exclusion on which the objecting party relies.  Although the appropriate level of detail will vary depending on the nature of the testimony and/or the type of objection, vague and uninformative grounds for objection ("Daubert" or "Rule 702") are insufficient to satisfy this rule's requirements.  This subsection's provisions for disclosures by "experts" on whose testimony the movant will rely in support of the motion are intended to cover any witness with specialized knowledge or expertise whose testimony will be submitted for the court's consideration under Fed. R. Evid. 104(a), whether or not the witness in question has been designated as a testimonial expert for that party's case-in-chief.

    Subsection (d)(3).  See comments to subsection (d)(2).

    Subsection (d)(4).  There is no general requirement that the court convene oral argument or a live evidentiary hearing in connection with motions involving expert testimony, although argument and/or a hearing may frequently be desirable, especially in complex matters.  This subsection is intended to apprise the parties that any right to argument or a live hearing is waived if no timely request is made.

    Subsection (e).   Under Fed. R. Evid. 103(a), a party who advances no objection or offer of proof at trial waives appellate review except for clear error, unless the objection or offer of proof was adjudicated in a "definitive" pretrial ruling.  This subsection calls for the court to dispel unproductive uncertainties over whether its pretrial evidentiary rulings were "definitive" within the meaning of Rule 103(a), so that the parties will have sufficient information to make any necessary objections or offers of proof during trial, and so that they may safely omit the unnecessary ones.