Witnesses: do they have to keep draft reports?

• Author: Regan, D. Paul

In November 2001, Judge Robert E. Payne of the U.S. District Court for the Eastern District of Virginia made a decision in Trigon Insurance Co. v. United States of America, 204 F.R.D. 277 (5th Cir. 2001) that may impact the way CPAs in California practice litigation consulting.

The judge concluded that draft expert reports exchanged between the experts and consultants working for counsel for the United States were required to have been retained and produced to counsel for Trigon Insurance.

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It also was determined during the course of this dispute that draft expert reports exchanged between experts for the United States and third parties were not produced to Trigon's counsel and that such draft expert reports had been deleted from the experts' hard drives and network files.

The judge directed computer forensics personnel from Deloitte & Touche to search the network files and hard disks of the experts and consultants for the United States to recover the draft reports that had been exchanged to and from the experts. The judge also allowed Trigon to recover the cost of this computer forensics work, $179,725, from the defendant.

BACKGROUND

The United States had retained Analysis Group/Economics to perform litigation consulting services to assist in defending against Trigon's action to recover federal income taxes and interest assessed and collected in prior years. In addition, certain "academic affiliates" of AGE had been designated as testifying experts for the United States.

On March 19, 2001, counsel for Trigon requested drafts of the reports from the United States' testifying experts because they had not been produced with the final reports, even though:

* Trigon's previous document requests included draft reports;

* Rule 26(a)(2) of the Federal Rules of Civil Procedure requires production of all documents reviewed by testifying experts; and

* AGE's business--litigation consulting--requires it to know the requirements of Rule 26.

However, by the time of Trigon's request, many of the draft reports had been deleted as a result of AGE's document retention policy--and the document retention policies of the individual practices of the testifying experts--which did not call for the retention of draft expert reports.

LITIGATION CONSULTANTS ARE HELD TO A HIGH STANDARD

Judge Payne took notice of AGE's expertise in litigation consulting and held it to a high standard:

"AGE holds itself out to have expertise in litigation...