Recent Order from Magistrate Judge Franklin L. Noel Provides Important Lessons on Expert Disclosures
Contact: Intellectual Property Litigation
A recent order by Magistrate Judge Noel in Luminara Worldwide, LLC v. Liown Electronics Co. helps to clarify the Federal Rules on expert disclosures.
Under Rule 26(a)(2)(B), an expert witness must provide a written report “if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Even if an expert witness is not required to provide such a report, a party must still “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). Further, for those expert witnesses not required to provide a written report, the disclosure must state the following:
“(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
Magistrate Judge Noel’s recent order in Luminara sheds light on both the extent of the disclosures required under Rule 26(a)(2)(C) and when an expert witness must provide a written report under Rule 26(a)(2)(B). In Luminara, the plaintiff argued that for three of its witnesses who “were previously deposed, Defendants already know the substance of their respective testimony and therefore they are not required to provide anything further in their expert disclosures.” For two of these witnesses, the plaintiff’s Rule 26(a)(2)(C) disclosure statements read as follows:
“[Mr. Schnuckle/Mr. Thompson] may provide testimony based on factual knowledge as well as testimony based on knowledge, skill, experience, training or education. [Mr. Schnuckle/Mr. Thompson] is expected to provide testimony at trial on the issues that he addressed at his deposition.”
The disclosure for the third witness was “substantially similar in brevity and generality.” Magistrate Judge Noel rejected the plaintiff’s position that nothing further was required for these witnesses. He noted that the Court “found no authority to support the proposition that the mere citation to a witnesses’ deposition testimony is a sufficient disclosure under Rule 26(a)(2)(C) when, at the time of the deposition, the witness had not been identified as an expert witness.” Magistrate Judge Noel went on to order the Plaintiff “to provide Defendants with supplemental disclosures that provide specific facts and opinions for the expert witnesses,” and noted that “[m]erely stating that they will testify consistent with their deposition testimony is not sufficient.”
The order in Luminara also addressed whether a fourth expert for the plaintiff was required to provide an expert report under Rule 26(a)(2)(B). Magistrate Judge Noel first stressed that “only witnesses who have been retained or specially employed to provide expert testimony in this case, or whose duties as the party’s employee regularly involve giving expert testimony, must provide a report.” For this fourth expert, Magistrate Judge Noel found that a written report under Rule 26(a)(2)(B) was not required because “[b]ased on the evidence in the record, the Court concludes that Patton, as an inventor of the patents-in-suit, was not specially retained to provide expert testimony, but rather will provide testimony based on his percipient knowledge.”
Magistrate Judge Noel’s order serves as an important reminder to litigators that not all expert witnesses must provide written reports, but the disclosures for those experts must still “provide specific facts and opinions.”