Page 28 - Civil Litigation

ance. Any concerns or questions about a subpoena should be directed to the client or attorney, or both,
or practitioner’s attorney.

Expert Reports

The preparation and disclosure of an expert report in federal court is governed by the Federal Rules of
Civil Procedure, Rule 26, and the Federal Rules of Evidence (see appendix C). fn 51 The plaintiff’s expert
witness report is disclosed to opposing disputing parties prior to the close of discovery to allow suffi-
cient time for deposition, if requested. Typically, the plaintiff’s expert witness report is submitted in ad-
vance of the defendant’s expert witness report. fn 52 Shortly after disclosure of the plaintiff’s expert wit-
ness reports, the defendant expert witness report is disclosed (also before the end of discovery) to pro-
vide for necessary depositions. It is important that the expert witness disclose all opinions as well as all
relied upon evidence, documents, or information prior to the disclosure of discovery because failure to
do so may prohibit the expert witness from testifying about these opinions at trial.

In some cases, an expert witness will comment on the disclosures and opinions of the opposing expert
witness; this is referred to as a rebuttal. After the initial expert witness disclosure, the expert witness
may prepare and submit additional responsive or supplemental reports when requested by the client or
attorney.

Although expert reports (a written report or a disclosed report) have been afforded protection under Rule
26, the committee notes point out that proper areas of inquiry may include, among other things, the ex-
pert’s testing methods, notes of any such testing, the expert’s communications with individuals other
than the counsel (as well an alternate analyses), or methods or approaches regarding whether the expert
considered using them in the analysis.

Spoliation

Spoliation is an intentional act to improperly destroy, alter, or conceal evidence. A finding of spoliation
is serious and may result in significant adverse consequences to the practitioner, client, or attorney. The
practitioner should discuss with the client or attorney, or both, the protocols to be followed to avoid al-
legations of spoliation.

Trial Testimony

Generally, the practitioner will be allowed to testify at trial if the expert opinions are based upon suffi-
cient facts or data, are the product of reliable principles and methods, and the expert witness has reliably
applied the principles and methods to the facts of the case. However, as previously mentioned, an oppos-
ing attorney may challenge the expert witness through voir dire. The Federal Rules of Evidence and case
precedent have given the trial judge gate-keeping responsibilities and discretion related to the admissi-
bility of expert witness testimony.

fn 51 Once again, expert disclosure requirements vary widely on a case-by-case basis and may occur between various state
and local jurisdictions.

fn 52 Simultaneous submission by the disputing parties’ expert witnesses is also commonplace.

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