Section 4.16 1. Deadline For Production

• Jurisdiction: New York

1. Deadline for Production

Where expert reports are required, a deadline for production is set forth in the rule.⁵¹⁰ Expert reports are generally exchanged either pursuant to the pretrial scheduling order or by directive of the court in some other fashion; if the reports are not so exchanged and absent a stipulation otherwise, such disclosure must be made 90 days or more before the trial date or the date by which the case is to be ready for trial.⁵¹¹

If the court as part of its discovery schedule has set a deadline for submission of an expert report, counsel should not fail to comply with the deadline and then seek to use the expert report when making a summary judgment motion.⁵¹²

In OFS Fitel, LLC v. Epstein, Becker & Green, P.C.,⁵¹³ the court held that the production of a written report after the close of discovery had been untimely. No trial date had been set. A local rule required that an expert be designated sufficiently early in the discovery period to allow the adverse party an opportunity to depose the expert. Because the expert report must be produced before the expert’s deposition,⁵¹⁴ the court held that the report necessarily must be provided before the close of discovery.⁵¹⁵

If a party fails without substantial justification to disclose information required by FRCP 26(a), that party risks a ruling that it may not use the witness or information on a motion or at trial.⁵¹⁶ This rule creates an incentive to produce an expert report that complies with the intent of FRCP 26;⁵¹⁷ the drafters hoped that a detailed report, furnished in advance of deposition, would eliminate the need to depose many experts and reduce the length of the expert depositions that were taken:⁵¹⁸

Although the courts are still struggling with the specificity mandated by the rule, the reported opinions demonstrate that the courts are determined to give effect to the advisory committee’s admonishment that the report be “detailed and complete,” and that the disclosures be sufficiently detailed so as to avoid unfair surprise to the opposing party and to conserve resources. ⁵¹⁹

Although the expert must identify in his or her report “the data or other information considered by the witness” in forming opinions, the expert need not produce working notes or the like.⁵²⁰ These materials, however, may be subject to a discovery demand or subpoena.⁵²¹

--------

Notes:

^[510] . FRCP 26(a)(2)(C).

^[511] . Id. Where the expert testimony is to be offered solely as rebuttal evidence, the...