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Federal Court Expert Disclosure Rules May Apply to In-House Witnesses

Although typically thought of as being limited to retained experts or employees who regularly give expert testimony, the expert report requirement set forth in FRCP 26(a)(2)(B) may apply even if your expert testimony comes from an in-house witness whose duties do not regularly involve giving expert testimony. As written, the rule requires reports only from experts who are "retained or specially employed to provide expert testimony or whose duties as an employee regularly involve giving expert testimony." But some courts have held that any employee giving expert testimony has to give an expert report. The theory, essentially, is that it is unfair to opposing parties to exempt such employees and, further, that an employee who gives expert testimony is, by virtue of that function, "specially employed" to do so.

There's a split in the cases, but the less favorable cases are, at present, more on point. Duty to provide report, see Prieto v. Malgor, 361 F.3d 1313, 1317-20 (11th Cir. 2004); McCulloch v. Hartford Life and Acc. Ins. Co., 223 F.R.D. 26, 27-29 (D. Conn. 2004); KW Plastics v. U.S. Can Co., 199 F.R.D. 687, 689-90 (M.D. Ala. 2000); Minnesota Min. and Mfg. Co. v. Signtech, USA, Ltd., 177 F.R.D. 459, 460 (D. Minn. 1998); Day v. Consolidated Rail Corp., 1996 WL 257654 (S.D.N.Y. 1996) at *2. Not duty to provide report, see Kirkland v. Union Pac. R.R., 189 F.R.D. 604, 608 (D. Nev. 1999); Bank of China v. NBM LLC, 359 F.3d 171, 182 & n.13 (2d Cir. 2004); Navajo Nation v. Norris, 189 F.R.D. 610, 612 (E.D. Wash. 1999).

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