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.
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.”
contrast, an expert who is retained by a party but is not expected to
. 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.
. 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.”
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.
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
One complication involves attorney work product that is considered
by a testifying expert. In the past, the federal courts were divided as to
. FED. R. CIV. P. 26(b)(4)(D).
. 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.
PRACTICE AND PROCEDURE § 2031.1 (4th ed. 2008).
. WRIGHT & MILLER, supra note 4, at 442.

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