Expert Discovery

• Pages: 187-214

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CHAPTER 9

EXPERT DISCOVERY

This chapter reviews a number of discovery issues that arise in

litigation involving expert witnesses who offer econometric testimony.

First, the chapter examines the disclosures that are required of the expert

under the federal rules, including the recent changes that affect attorney-

expert communications and draft expert reports. Next, the chapter

focuses specifically on the deposition of the econometric expert, and

offers some suggestions to the practitioner who must prepare for and take

the deposition. The chapter then discusses the significant restrictions on

obtaining discovery from consulting (non-testifying) experts and the rare

circumstances in which such discovery has been permitted. Finally, the

chapter discusses other discovery issues that may arise in cases in which

econometrics plays an important role, including limitations on discovery

from non-parties and from the federal government.

A. Discovery of Testifying Experts

Econometric evidence is ordinarily introduced through expert

testimony. Rule 26(a)(2) of the Federal Rules of Civil Procedure, which

requires certain mandatory disclosures of all expert witnesses, is

therefore central to econometric discovery.

1

Generally, Rule 26(a)(2) requires each testifying expert to submit a

written, signed report containing, inter alia, “a complete statement of all

opinions the wtiness will express and the basis and reasons for them” and

“the facts or data considered by the witness in forming them.”

2

By

contrast, an expert who is retained by a party but is not expected to

1

. The previous subsection, FED. R. CIV. P. 26(a)(1), sets out additional

mandatory disclosures required of all parties, including “a copy of, or a

description by category and location of, all documents, data compilations,

and tangible thi ngs” within the party’s custody and contr ol and which

may be used to support the party’s claims or defenses. This information

can be used to craft document demands and interrogatories seeking data.

Documents that underlie an op posing expert’s opinion, however, are not

covered by Rule 26(a)(1). See infra note 17 and accompanying text.

2

. FED. R. CIV. P. 26(a)(2)(B).

188 Econometrics

testify at trial is afforded substantial protection from discovery. Not only

is such a consulting expert exempt from the requirement of submitting an

expert report, but he or she may only be deposed or subjected to other

discovery upon a showing of “exceptional circumstances under which it

is impracticable for the party to obtain facts or opinions on the same

subject by other means.”

3

1. Document and Data Discovery

When planning for discovery of an expert expected to testify for the

opposing side, the principal goal should be to obtain sufficient

information to effectively cross-examine the witness at trial. Indeed, the

courts have recognized that this is the purpose of Rule 26(a)(2)’s

requirements of expert disclosure and have therefore construed them

broadly. The plain language of the rule requires that all facts or data—

including econometric or statistical data—“considered by” the expert in

forming his or her conclusions be disclosed. This includes all factual

material that the expert has reviewed regardless of whether he or she

ultimately relies upon it in the report.

4

As one treatise summarizes the

state of the law, “[i]t appears that counsel should now expect that any

written or tangible data provided to testifying experts will have to be

disclosed.”

5

One complication involves attorney work product that is considered

by a testifying expert. In the past, the federal courts were divided as to

3

. FED. R. CIV. P. 26(b)(4)(D).

4

. See, e.g., Synthes Spine Co. v. Walden, 232 F.R.D. 460, 464 (E.D. Pa.

2005) (“This Court interprets Rule 26(a) (2)(B) as requiring disclosure of

all information, whether privileged or not, that a testifying expert

generates, reviews, reflects upon, reads, and/or uses in connection with

the formulation of his opinio ns, even if the testif ying expert ultimately

rejects the information.”); In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d

1370, 1375 -76 (Fed. Cir. 2001); U.S. Fid. & Guar. Co. v. Braspetro Oil

Servs. Co., 226 F. Supp. 2d 459 (S.D.N.Y. 2002) (provision of document

database to testifying expert waived both attorney-client privilege and

work product protection, and defendants had shown no competent

evidence that materials had not actually been reviewed by the expert),

aff’d in part and vacated in part on other grounds, 369 F.3d 34 (2d Cir.

2004); 8 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2031.1 (4th ed. 2008).

5

. WRIGHT & MILLER, supra note 4, at 442.