In an apparently unpublished decision, Magistrate Judge Sullivan of the federal district court has held that Rule 26(a)(2) requires the disclosure of all facts or data considered by an expert witness, not just the facts or data upon which the expert relies. The issue arose in the context of a trademark dispute between two local jewelry manufacturers. Plaintiff's expert used a consumer survey as part of his analysis to conclude there was a likelihood of confusion between the parties' marks. However, the expert's disclosure did not include the entire survey, only those parts on which the expert relied, nor did the disclosure include the raw survey results, i.e., all the respondents' answers to all the questions. Defendant moved to compel the production of the entire survey and all its results. Plaintiff produced the complete survey and results two weeks before defendant's expert disclosures were due.
Citing F.R.C.P. 37(c)(1), the Court initially said the motion requires a three-part inquiry: whether the disclosure should have included the material sought; if so, whether the omission of the material was either substantially justified or harmless; and, if not, the appropriate sanction.
The Court first concluded that federal law and decisions require the production of "any material considered by the expert that contains factual ingredients; it is not limited to the facts or data relied on by the expert." Since the expert considered the entire survey and the raw data, it must be disclosed.
Next, the Court found that while the timing of the production of the entire survey and its results was substantially justified, it was still potentially harmful to defendant. The case law unanimously requires production of the material in time for the opposing party to prepare a rebuttal opinion. Here, the ability of defendant's expert to prepare a report was compromised by the delay in production.
The Court concluded that since there was no bad faith, the appropriate remedy was to extend defendant's deadline to produce its expert disclosure to the extent it depends on the entire survey and its raw data.
The Memorandum and Order are available on the court's website, http://www.rid.uscourts.gov/menu/judges/opinions/recent.asp. JJI International, Inc. v. The Bazar Group, Inc., C.A. No. 11-206ML (D.R.I. April 8, 2013).