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The expert disclosure requirement of Federal Rule of Civil Procedure 26(a)(2)(B), together with the supplementation requirement of Rule 26(e)(1) and the preclusion remedy of Rule 37(c)(1), raise nettlesome tactical issues in taking expert depositions. These rules create a pair of reciprocal risks — namely, the risk of opening the door to otherwise inadmissible expert testimony by inquiring into areas not explicated in the expert report, v. the risk of being blindsided by unexplored expert opinions proffered through post-deposition supplementation of the expert report. Separately, on the technological side, Rule 30 offers the ability to use videoconferencing to depose witnesses — expert and others. This is a potential cost-saving option that merits more attention than it has received to date. A FUNDAMENTAL QUESTION: DO YOU DEPOSE THE EXPERT? The fundamental question raised by the federal rules’ detailed reporting requirements — and the concomitant, automatic preclusion sanction barring undisclosed expert opinions — is whether to depose the expert. Doing so may open the door to testimony that would otherwise presumptively be excluded. Under Rule 26(a)(2)(B), a detailed written report is required from each “witness who is retained or specially employed to provide expert testimony in the case.” That report must include all: � Opinions. “[A] complete statement of all opinions to be expressed and the basis and reasons therefor.” � Underlying data. “[T]he data or other information considered by the witness in forming the opinions.” � Exhibits. “[A]ny exhibits to be used as a summary of or support for the opinions.” � Qualifications/publications. “[T]he qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years.” � Compensation. “[T]he compensation to be paid for the study and testimony.” � Testimony. “[A] listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” Under Rule 37(c)(1), if a party fails to make this expert disclosure in a timely fashion, the undisclosed opinions are automatically excluded from use at trial or on any motion, unless there is “substantial justification” for the failure to disclose or unless the “failure is harmless.” These are largely fact-driven appraisals by the court. [Criteria for making these judgments were discussed in my National Law Journalcolumn of Jan. 11, 1999.] Failure to honor the expert disclosure obligations within the time frame set forth in Rule 26 frequently leads to a complete preclusion of the undisclosed testimony or exhibits pursuant to Rule 37(c)(1). See, e.g., Patterson v. State Automobile Mutual Insurance Co., 105 F.3d 1251, 1252 (8th Cir. 1997); Cummins v. Lyle Industries, 93 F.3d 362, 371 (7th Cir. 1996). This is a salutary result, motivating compliance with the disclosure requirement and penalizing gamesmanship. By its terms, Rule 37(c)(1) strongly militates against inquiring into areas not covered by the expert report because anything not contained in the report should be excluded. Common deposition questions that are asked to ensure that no unexplored opinions exist — e.g., “Do you have any other opinions as to this case that we haven’t discussed?” — may open the door to testimony that would otherwise be precluded under Rule 37(c)(1). If it does, the examiner may well find him- or herself not really prepared to depose on any new opinion that is wholly unexpected. There are, however, two possible traps in not exploring the potential testimony thoroughly. The first trap is the supplementation right of the party proffering the expert. Under Rule 37(c)(1), preclusion does not apply to opinions that have been disclosed — after the expert’s report has been filed and/or deposition taken — in accordance with Rule 26(e)(1). Generally, Rule 26(e) is intended to compel parties to make supplemental disclosure of information that comes to their attention after discovery has been taken on a subject or from someone. In the context of experts, however, the obligations imposed by Rule 26(e) can become a weapon for an ill-motivated litigant. Rule 26(e)(1) provides that the expert disclosure obligation has been satisfied — and the automatic exclusion under Rule 37(c)(1) thus does not apply — if the undisclosed opinions have “otherwise been made known to the other parties during the discovery process or in writing…by the time the party’s disclosures under Rule 26(a)(3) are due.” Rule 26(a)(3) is the default rule requiring disclosure of pretrial order-like information, in the unlikely event that the judge does not order the parties to prepare a specified form of pretrial order. LIMITED DEPOSITION COULD LEAVE OTHER PARTY EXPOSED The effect of Rule 26(e)(1), therefore, is to permit expert opinions to be supplemented as late as the date by which the pretrial order is due — which is, by definition, almost always after discovery has concluded. To make matters worse, in the case of experts only — and not any other type of witness — Rule 26(e)(1) adds that the supplementation duty (in this instance, perhaps “supplementation right” would be more apt) “extends both to information contained in the report and to information provided through a deposition of the expert.” Consequently, a failure to depose an expert on areas not covered in the expert’s report might be thought to leave the adverse party exposed to surprise opinions that are “supplemented” at the last minute and thus usable at trial, and that have not been explored in discovery. A party could intentionally submit a minimal or incomplete disclosure and — only after any deposition has been taken — supplement it to add new and different opinions. Equally pernicious, a party could supply an incomplete disclosure but have his or her expert materially supplement it at a deposition in ways that effectively preclude effective preparation for the deposition — for example, by the addition of previously undisclosed opinions. Results like these, however, would reward gamesmanship and encourage trial by ambush, both of which are antithetical to practice under the federal rules. Behavior of this sort is abusive, not harmless. It is appropriately checked by reopening discovery, by assessing additional costs caused by this behavior and, in exacerbated cases, by striking the party’s original disclosure and the testimony — generally by resort to the powers vested in the court under rules 37(a) and (c). See, generally, Joseph, Sanctions: The Federal Law of Litigation Abuse, pp 48-49 (3d ed. 2000). The second risk takes the form of ever-present judicial discretion. The court may find “harmless” error or “substantial justification” — within the meaning of Rule 37(c)(1) — in the failure to make disclosure. Dozens of reported decisions, however, suggest that, although it obviously depends on the judge, the federal judiciary understands the importance of enforcing the reporting requirements and precluding unfair surprise. IS SUPPLEMENTATION FAIR? FACTORS THAT COURTS WEIGH In deciding whether a party’s supplementation of its expert disclosures is fair, the court considers: � Good faith. The good faith, willfulness or negligence of the proponent in failing to make the disclosure in a timely fashion. � Prior availability. Whether the belatedly disclosed information was or should have been available earlier to the proponent or the opponent. � Prejudice. The prejudice to the adversary, which will include review of such issues as the amount of time remaining before trial; the importance of the disclosure; and the ability to cure the default as by continuing the relevant court date. � Importance of the evidence. Tangential or relatively minor opinions ordinarily call for less severe sanctions than do those opinions that are more central to the case. Thus, although there are no ironclad rules, in considering an expert deposition it is important to bear in mind that less may be more. The examiner has substantial power in the first instance (subject, of course, to the judge’s disagreeing) to confine the scope of the testimony to the parameters of the expert’s Rule 26(a)(2)(B) report. Although there exists a risk that supplementation may be used by an adversary to attempt to circumvent the mandatory disclosure obligation, judges will usually, and properly, look askance at that effort. At a minimum, the examiner should be entitled to a second deposition on the unexplored area. In light of the imminence of the rule changes that will limit all depositions to a presumptive limit of seven hours, the less-is-more approach has much to commend it. VIDEOCONFERENCE DEPOSITION CAN PROVE COST-EFFECTIVE Rule 30(b)(7) permits parties to conduct depositions via videoconference. This technological option is not limited to expert depositions, but it can prove particularly cost-effective in deposing experts because it minimizes or eliminates costly travel time. Rule 30(b)(7) provides: “The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(2), a deposition taken by such means is taken in the district and at the place where the deponent is to answer questions.” Under this provision, the parties may stipulate, or the court in its discretion may order, that testimony of a witness who is located outside the jurisdiction be taken by means of videoconferencing. See, e.g., In re Central Gulf Lines Inc. & Waterman Steamship Corp., 1999 U.S. Dist. Lexis 19070, at *3-*5 (E.D. La. Dec. 3, 1999) (New Orleans venue; Hong Kong witnesses); Cacciavillano v. Ruscello Inc., 1996 U.S. Dist. Lexis 18968, at *6-*8 (E.D. Pa. Dec. 23, 1996) (Philadelphia venue; Phoenix witnesses) (opposing party given the option of paying all costs of adversary counsel in traveling to Phoenix). The second sentence of Rule 30(b)(7) provides that a videoconferenced deposition is “taken in the district and at the place where the deponent is to answer questions.” This provision requires that the oath be administered by a person qualified to administer oaths in the same jurisdiction where the witness is located. See, e.g., Loucas G. Matsas Salvage & Towing Maritime Co. v. M/T Cold Spring I,1997 U.S. Dist. Lexis 2415, at *5-*6 (E.D. La. March 5, 1997) (excluding videoconferenced testimony when witness was in Poland but the oath was administered by a court reporter in New Orleans). PRACTICAL MATTERS: IDENTIFY EVERYONE WHO IS PRESENT As a practical matter, because this requires that a qualified person be present at the deposition, the court reporter (if one is used) should be located with the witness. The presence of the officer with the witness will operate to assure that no unidentified person is present and off camera, signaling answers to the witness. Note that Rule 30(b)(4)(E) requires the court reporter or other officer to begin the deposition with a statement that includes “an identification of all persons present.” The second sentence of Rule 30(b)(7) and parallel state provisions make reference to Rule 28(a) (which deals with people before whom depositions may be taken within the United States) but not Rule 28(b) (which refers to those before whom depositions may be taken in foreign countries). It has been argued that the absence of reference to Rule 28(b) means that remote electronic means may not be used to take the deposition of people in foreign countries. That argument has been rejected — in Loucas G. Matsas Salvage & Towing Maritime Co. v. M/T Cold Spring I– and properly so. Under traditional canons of statutory construction, the express authorization of the first sentence of the rule trumps the implication allegedly drawn from the negative pregnant in the second sentence of the rule. It would be incongruous, as a matter of policy and drafting intent, to preclude the use of videoconferencing in those situations in which it would be most economical, given that the purpose of the rule is to facilitate and accommodate issues of economy and fairness. Mr. Joseph chairs the litigation department at New York’s Fried, Frank, Harris, Shriver & Jacobson and is a past chair of the Litigation Section of the ABA. He can be reached at [email protected].

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