Burden-Shifting Procedure for Determining Whether 26(a)(2)(B) Report or 26(a)(2)(C) Disclosure Required

Herman v. Hartford Cas. Ins. Co., 2012 U.S. Dist. LEXIS 163345 (D. Colo. Nov. 15, 2012):

This Court has traditionally employed a burden-shifting procedure for determining whether the requirements of Rule 26(a)(2) have been satisfied . Morris v. Wells Fargo Bank, N.A., No. 09-cv-02160-CMA-KMT, 2010 WL 2501078, at *1 (D. Colo. June 17, 2010) (unpublished) ("[I]t is clear that some showing must be made to distinguish an expert witness not required to file a report under Rule 26(a)(2)(B) from the vast majority of cases where experts are required to provide a report."). The party moving to strike the witness bears the initial burden of showing that the disclosing party failed to produce a written report under Rule 26(a)(2)(B).... The burden then shifts to the disclosing party to demonstrate that the witness is not retained or specially employed and, thus, no report was required.... Because the rule was amended following Morris to require a non-retained expert to provide the subject matter and a summary of facts and opinions to which the expert is expected to testify, the standard has changed somewhat to require the movant to show that the disclosing party failed to meet all requirements of Rule 26(a)(2)(B), and the disclosing party must then demonstrate that the expert is not retained or specially employed so that the requirements of Rule 26(a)(2)(B) do not apply.

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