Rule 37(c)(1), Tightening The Noose Around Late Expert Disclosures?

One of the banes of our existence is the belatedly disclosed expert report.  The rules allow, indeed encourage, judges to set time limits for expert disclosures.  But we can’t count the number of times that, once the defense starts to make headway against a plaintiff’s theory after the time for disclosure has passed, the plaintiff thinks nothing of disregarding the deadlines set under the rules and tossing in another expert report calculated to derail the defense momentum.


That’s not supposed to happen.  In federal court expert “disclosures shall be made at the times and in the sequence directed by the court.”  Fed. R. Civ. P. 26(a)(2)(C).  Late disclosures are supposed to be disfavored and excluded:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

Fed. R. Civ. P. 37(a)(1).

But we all know these rules are primarily honored in the breach.

Or perhaps were.

Recent precedent offers some hope that courts might start actually enforcing their own deadlines for expert discovery more strictly.  In Tokai Corp. v. Easton Enterprises, Inc., 632 F.3d 1358 (Fed. Cir. 2011), the plaintiffs submitted two late reports, which were stricken and summary judgment entered.  On appeal plaintiff claimed that one report could remain hidden because it was from an “employee” witness, and the other was a mere rebuttal witness.  The Court of Appeals had none of either excuse.  The plaintiff never established the prerequisites of the employee exception, id. at 1365, and otherwise, a party’s “subjective beliefs” about the strength of the other side’s case don’t add up to a justification for ignoring the disclosure rules:

[Plaintiff] proffers no justification apart from its own subjective beliefs.  We have previously cautioned litigants of the pitfalls of playing fast and loose with rules of discovery.  Conclusory expert reports, eleventh hour disclosures, and attempts to proffer expert testimony without compliance with Rule 26 violate both the rules and principles of discovery, and the obligations lawyers have to the court. Exclusion and forfeiture are appropriate consequences to avoid repeated occurrences of such manipulation of the litigation process.

Id. at 1365-66 (citations and quotation marks omitted).

Then there’s Wintice Group, Inc. v. Longleg, 2011 WL 383039 (D. Nev. Feb. 3, 2011), where the plaintiff, for no good reason we could discern, “only provided the expert’s name and stated that the expert will opine in support of Plaintiff's damages,” but produced no report.  Id. at *1.  Well after the deadline, the court entered an adverse ruling due to plaintiff’s failure to provide expert damages evidence. Id. Only then did plaintiff belatedly bother to provide the mandated report – after “identifying” the expert (over the defendant’s objection) in a supposedly “joint” pretrial order.  Id. at *2.

The court held that amended Rule 37(c)(1) was intended to “give teeth” to the expert deadlines.  Id. at *3. The Rule’s default position is exclusion:

A literal reading of Rule 37(a)(3) and (c)(1) compels the conclusion that an expert’s trial testimony should be automatically excluded if a party fails to strictly comply with the requirements of Rule 26(a)(2)(B) unless the court finds that there was a substantial justification for the failure to make complete disclosure, or that the failure to disclose is harmless. . . . The district court is given broad discretion in supervising the pretrial phase of litigation. If full compliance with Rule 26(a) is not made, Rule 37(c)(1) mandates some sanction, the degree and severity of which are within the discretion of the trial judge.

Id. (citations and quotation marks omitted).  Exclusion is appropriate “even in the absence of showing a bad faith or willfulness.”  Id.  Any expert proffer after the deadline is passed requires leave of court, which plaintiff did not seek.  Id. at *6-7.

The plaintiff’s excuse that it did not realize the need for an expert until after the court’s adverse ruling was “categorically reject[ed].”  Id. at *5.  Likewise, plaintiff couldn’t blame the defendant for not investigating its inadequate damages proffer:

Defendants’ “actual knowledge” [that] Plaintiff intended to call an expert long after the deadline for designating an expert has expired did not cure the Plaintiff's failure to comply with the court’s Discovery Plan and Scheduling Order, or the Plaintiff's failure to meet it’s discovery disclosure obligations. If anything, it was the Plaintiff who sat on its hands by electing to prosecute this case without retaining an expert until after the district judge found the evidence submitted to support its damages were insufficient.

Id. at *6.  Any argument that a defendant “sat on its hands” by not investigating an improper and incomplete expert disclosure was “frivolous.”  Id. at *7.  Thus the court ordered exclusion of the belated report.  Id. at 8.

It’s only a couple of cases, true, but they do hold out some hope that some courts at least might be inclined to crack down on parties who fail to file their expert reports in a timely fashion.