Tuesday, February 10, 2015

Rules Are Meant to Be Broken: The U.S. District Court for the District of Columbia Denies Motion to Strike Experts for Discovery Failures

Federal Rule of Civil Procedure 26, subsection (a)(2) provides that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence." Ordinarily, this disclosure must be supplemented by a written report, prepared and signed by the witness, which includes “the facts or data considered by the witness,” “any exhibits that will be used,” and the substance of the expert’s opinions and the “basis and reasons for them.” Id. Doing so prevents unfair surprise at trial, and provides the opposing party the opportunity to prepare rebuttal reports, depose the expert in advance of trial, and prepare for depositions and cross-examination at trial. Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 5-6 (D.D.C. 2005); see also Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007).

In Robinson v. District of Columbia, 2014 U.S. Dist. LEXIS 166660 (2014), the United States District Court for the District of Columbia denied Plaintiff's motion to strike Defendants' accident reconstruction expert’s testimony for its failure to obey disclosure requirements by not providing its expert's curriculum vitae or a list of cases in which he was involved by trial court's scheduling order's deadline, and for not providing its expert's photographs and models prior to his deposition.

The Court ruled that striking an expert was "too draconian" for Defendants' alleged discovery failures - although Defendants failed to meet the disclosure deadlines, they did ultimately provide the expert's curriculum vitae and list of cases several weeks in advance of the expert's deposition, so there was no apparent harm to Plaintiff. 

In regard to the expert's failure to provide his diagrams and models prior to the deposition, the Court still found that striking Defendants’ expert was too harsh a penalty, and, instead, allowed the Plaintiff to reopen the expert's deposition for questioning regarding the accident reconstruction models.

The facts of the case are not relevant to the analysis. For those interested, this case was brought against the Metropolitan Police Department and the District of Columbia by Mr. Robinson's family after Mr. Robinson died in a collision with an unmarked District of Columbia Police Department police car on March 6, 2009.  

Despite the Court’s lenient ruling in the above matter, best practices mandate that the above described materials be turned over in a sufficient period of time prior to a deposition or trial to provide opposing counsel with sufficient time to review the materials. No one particularly “won” in this situation, and reopening depositions cost additional time and money to both sides. While this case highlights the Court’s desire to reach a reasonable and fair outcome for all parties involved by permitting the expert testimony despite belated discovery when there was no actual prejudice to the plaintiff, it is prudent not to push the limits of a court’s patience with unnecessary discovery violations if it can be avoided.

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