Barebones 26(a)(2)(C) Disclosure Adequate Where Supplemented by Expert’s Testing Results and His 30(b)(6) Deposition

Ira Green, Inc. v. J.L. Darling Corp., 2012 U.S. Dist. LEXIS 113746 (W.D. Wash. Aug. 13, 2012):

This matter comes before the court on Plaintiff Ira Green, Inc.'s Motion to Exclude Expert Witness Disclosures and Report and to Preclude Testimony. ***

On July 9, 2012, Green deposed Todd Silver, co-owner of Darling, who had been identified by Darling as a Fed.R.Civ.P. 30(b)(6) witness. Pursuant to Fed.R.Civ.P. 30(b)(6), the Notice of Deposition identified topics for the deposition, including testing of any Ira Green, Brigade and/or IGIQM products (Topic 25); testing of any STORM SAF products (Topic 26); and Comparisons of RITR and STORM SAF products (Topic 27). ***

Green's counsel Christine Bush stated in a declaration that, during the deposition of Mr. Silver, Mr. Silver was asked "whether JLD had tested any Ira Green notebooks in 2012." Dkt. 53-2, at 2. Ms. Bush stated that "JLD's counsel instructed Mr. Silver not to answer that question with respect to testing done for this litigation." Dkt. 53-2, at 2.

On July 13, 2012, Darling served its expert witness disclosure, identifying Mr. Silver as an expert. Dkt. 53-6, at 3. The disclosure stated as follows:

Mr. Silver will provide testimony under Fed.R.Evid. 702, 703, and/or 705 on the relative performance characteristics of J.L. Darling's Rite in the Rain Paper and Ira Green's so-called waterproof paper, and the significance of the findings of the IPS laboratory, as contained in the Expert Report of Lucy Hayter, with respect to such performance.

*** On March 28, 2012, in response to Green's discovery requests, Darling provided to Green a video of Mr. Silver performing the testing to which he subjected both Green and Darling's products. ***

Green maintains that Mr. Silver should be precluded from providing expert testimony because the expert disclosures do not provide a summary of the facts and opinions to which Mr. Silver is expected to testify, as is required by Fed.R.Civ.P. 26(a)(2)(C)(ii); because Mr. Silver is unqualified to offer an expert opinion; and because Mr. Silver's testimony is excludable under Fed.R.Evid. 403(b). In the alternative, Green requests that the court require Darling to make Mr. Silver available for deposition in Rhode Island (Mr. Silver is a Washington resident) and to pay the costs of the deposition. In its reply, Green argues that Mr. Silver is not competent to testify as an expert, and that his interpretation of Ms. Hayter's testing and data analysis is improper. ***

Darling contends that an expert report was not required for Mr. Silver because Mr. Silver is not a specially-retained expert; that Mr. Silver's experience and qualifications, the nature of the testing he has done on the various products at issue, the results of that testing, and the opinions that he has formulated as a result of that experience have all been provided to Green; and that there is no basis for requiring Darling to pay the costs of redeposition of Mr. Silver, because Mr. Silver was timely disclosed as an expert.

The record shows that the disclosures regarding Mr. Silver were adequate. Whether Mr. Silver's testimony will be admissible at trial is subject to the rules of evidence; a ruling on that issue is premature. If Green wishes more information on Mr. Silver's qualifications, or the basis for Mr. Silver's knowledge and opinion, Green may pursue that by deposition.

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