Are expert witnesses required to produce prior expert reports from unrelated cases during discovery? The US District Court in Colorado in CAROL VON SCHWAB, v. AAA FIRE & CASUALTY INSURANCE COMPANY, Civil Action No. 1:14-cv-00183-CMA-NYW, April 21, 2015 held no.
The court dealt with an insurance claim due to hail storm event.
The court rejected the attempt to force the expert to produce prior expert reports and stated:
In essence, Plaintiffs seek discovery of Mr. Craver’s expert witness reports involving unrelated cases and parties on the basis of their representation that Mr. Craver is biased, and their speculation that they may obtain evidence of same in Mr. Craver’s prior reports. [#79, at 1-2]. Though the presumptive scope of discovery embodied by the Federal Rules of Civil Procedure is broad absent good cause for limitation, the court declines to permit the overbroad discovery sought by Plaintiffs’ subpoena upon Mr. Craver. Federal Rule of Civil Procedure 26(a)(2)(B) provides in part that a “witness who is retained or specially employed to provide expert testimony . . . [shall disclose] a written report . . . listing [ ] any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” [Id.] As other courts have held in passing on subpoenas requesting a party’s expert’s prior expert reports, “[b]y implication” a party “is not entitled to disclosure of the reports in those [prior] cases, regardless of their subject matter.” Surles v. Air France, No. 00CIV5004RMBFM, 2001 WL 815522 at *7 (S.D.N.Y. July 19, 2001); see also Trunk v. Midwest Rubber and Supply Co., 175 F.R.D. 664, 665 (D. Colo. 1997) (“conclusions and opinions offered in unrelated litigation do not fall within the scope of Rule 26 discovery”); In re Air Crash Disaster at Stapleton international Airport, Denver, Colorado on November 15, 1987, 720 F. Supp. 1442, 1444 (D. Colo. 1988) (finding that such discovery “would unnecessarily burden litigation with pre-trial inquiry into facts and issues wholly irrelevant to the case at hand. Defendants’ general contention that they are entitled to develop material to be used during cross-examination does not convince this court to articulate a new general rule favoring burdensome production and deposition.”).
Absent some showing of potential relevance, the subpoena should also be quashed because speculation as to potential bias alone is not a sufficient ground to burden Mr. Craver and third-parties with the task of sifting through materials in the unrelated expert reports to determine whether such reports contain confidential materials properly subject to redaction. Having said nothing of the contents of any particular prior reports beyond the general subject matter, Plaintiffs have failed to provide the court with a reasonable basis to conclude that the relevance of the unrelated expert reports, or any bias such reports could reflect, outweighs the burden to Mr. Carver. Charles E. Wright et al., 8 FED. PRAC. & PROC. CIV. § 2015 (3d ed.) (collecting authorities) (noting that as to the discoverability of evidence of bias generally, “the task for the court is to assess the likelihood that the discovery actually will produce admissible evidence; unless there is reasonable basis to predict that it will, discovery may be refused on that ground.”)