New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Experts — Rulemaking — Advisory Committee Meeting of January 13, 2007

Download PDF

The following are observations of Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School, concerning the meeting of the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure in Arizona last Saturday, January 13, 2007 dealing with expert reports (see the post, below, dated January 2, 2007):

1. Consideration was given to treating physicians. The consensus appeared to be that reports should not be required because that could scare away some doctors. But there is nothing in the rule about this and it is possible that there will be an amendment to the rule to address it -- perhaps either a specific statement that reports are not required, or a return to the former rule that reports are not required but counsel must provide a thorough account of what the witness is going to say that is in the realm of expert testimony.

2. Consideration was given to doing away with expert reports entirely. But cooler heads prevailed. The point was made that there is a difference between working from a counsel's description and a report that is at least purportedly in the witness's own words.

3. With respect to employees not specially retained by experts, the Committee seems to be exploring a distinction between basic factual employees who happen to have expertise -- e.g., the drill press operator who saw the accident -- and an employee without factual information who seems to be called to end-run the report requirements. One possibility is for counsel to provide a thorough statement for all such witnesses and, if the opposing party can make a case to the judge that a report should be required -- based on the nature of the testimony or the fact that the party appears to be end-running -- then the court can order a report.

4. There was dispute about whether communications between expert and counsel should be protected. One participant made an impassioned speech about the theory of expert witnesses, that they are not supposed to be advocates, and that one needs to know all the communications in order to determine how much the lawyer has influenced the report. Others made the case that the current system mandates irrational, expensive behavior, such as the need to hire consulting experts. The Committee seems to be interested in the ABA proposal, but for its exception, i.e., "exceptional circumstances" --- what are they? That presents a drafting concern that the Chair of the Subcommittee raised three times. The goal would apparently be to require disclosure of communications only when it appears that the expert is simply adopting the lawyer's report as his or her own. One might wonder why this is a problem because such an expert opinion is unlikely to satisfy Daubert anyway.

5. There was general agreement that drafts should not be disclosed, for the obvious reasons. But the point was made that any need for access to drafts may be related to access to attorney-expert communications. So the issues are obviously related.

The discussion was, in its entirety, very preliminary and no conclusions can be drawn as to what action the Subcommittee or full Committee may take. It does appear that the treatment of experts will continue to be explored.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice