Commercial Litigation and Arbitration

Experts — Abusive Supplementation — Destruction of Notes Sometimes Forgiveable

The defendant's expert in Sandata Techs., Inc. v. Infocrossing, Inc., , 2007 U.S. Dist. LEXIS 85176 (S.D.N.Y. Nov. 16, 2007), prepared a supplemental report that had not been delivered to the other side prior to his deposition, but was handed across the table when it was referred to. Another voluminous supplemental report was delivered on the last day of expert discovery. Defendant Infocrossing's counsel argued that these supplements were made in compliance with Fed.R.Civ.P. 26(e)(1), which provides that:

A party is under a duty to supplement at appropriate intervals its disclosure under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect of testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends to both information contained in the report and to information provided through deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's [final pretrial disclosures] under Rule 26(A)(3) are due.

Opposing counsel argued that this supplementation was untimely and that the reports were in fact in the nature of rebuttal rather than supplementation. Notwithstanding literal compliance with the timing components of the rule, Magistrate Judge Theodore Katz agreed, first, that the reports were in substance impermissible efforts at rebuttal rather than supplementation, and, second, that the timing and approach were abusive:

"Fed. R. Civ. P. 26(e) does not grant a license to supplement a previously filed expert report because a party wants to, but instead imposes an obligation to supplement the report when a party discovers the information it has disclosed is incomplete or incorrect." [Citation omitted.] Taken to its logical conclusion, Infocrossing's position would lead to an absurd scenario for which Rule 26(e)(1) provides no foundation - each party could claim the right to continually "supplement" its expert reports in response to the last expert report its adversary had submitted.

The Court was also displeased with the self-help character of the behavior:

In the end, it is apparent that Roman's [the expert's] initial report was termed "preliminary" because he either (1) intended to defer completing his report until he had an opportunity to see [plaintiff] Sandata's response, or (2) he had not completed his analysis of the relevant information that was, or should have been, available to him. This appears to have been largely a consequence of Infocrossing's delay in retaining Roman as an expert. Yet, rather than acknowledging his self-created predicament, asking for additional time to complete the report, and deferring the Roman deposition, Infocrossing's counsel has chosen to assert a patently disingenuous justification for the two untimely and unauthorized reply reports - that he is merely doing what he is obligated to do under Rule 26(e).

The defense expert was barred from expressing any opinions not set forth in his initial report.

Destruction of Notes. Magistrate Judge Katz was much more forgiving of the plaintiff's expert's destruction of notes of his initial conversation with plaintiff's counsel (often a sanctionable event):

This overwrought rhetoric is disproportionate in the extreme to the "misconduct" alleged. The so-called "destruction" of evidence relates to notes a Sandata expert made while meeting with Sandata's counsel in anticipation of writing his expert report. After the meeting ended, the expert threw his notes in the trash; he did not discuss his actions with counsel, and was not instructed to do so by counsel. The expert testified at his deposition that the subject of his conversation with counsel was to understand Sandata's litigation goals, and those goals were actually set forth as headings in the report he produced. Yet, Infocrossing's counsel speculates, without any support, that the notes reflected substantive information that Sandata's counsel told the expert to write in his report.

No sanctions imposed on plaintiff for its expert's destruction of notes.

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