Judge Rejects Flimsy Excuses Re: Expert Disclosure Deadlines

By Joshua Fruchter, Esq
Has an adversary ever offered up an outrageous excuse for missing a court-imposed deadline for disclosure of expert testimony? Was the judge indulgent, or did he/she throw the book at opposing counsel? The strict enforcement of deadlines governing expert disclosures against a party with decidedly flimsy excuses for its tardiness was recently illustrated in Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 2014 WL 1243685 (S.D.N.Y. Mar. 26, 2014) (“AAI”).

The litigation in AAI had been pending for over nine years. The plaintiff had sued the defendant for allegedly misappropriating plaintiff's trade secrets — mathematical models used to determine the present value of mortgage-backed securities with greater accuracy than existing methods. Due to the complexity of the subject matter, discovery dragged on for many years, and it was not until January 17, 2012, that the court fixed May 17, 2012 as the deadline for the plaintiff to submit all expert disclosures required under Rule 26(a)(2) of the Federal Rules of Civil Procedure.

Notwithstanding the court’s deadline, plaintiff attempted to serve a supplemental expert report from Dr. Jianqing Fan (the “Fan Report”) on June 6, 2013 — more than a year after the May 17, 2012 deadline. Defendants moved to strike the Fan Report on the grounds that it was untimely and contained new information and opinions that were not within the scope of either parties' prior expert disclosures. The court agreed and granted the defendants’ motion.

Undaunted, in opposition to defendants’ subsequent motion for summary judgment, plaintiff incorporated the previously stricken Fan Report into its response. Defendants cried foul, arguing that inclusion of the Fan Report in plaintiff’s opposition paper violated the deadline imposed by the court and Federal Rule 26, thus warranting preclusion of the Fan Report as evidence.

The court once again agreed with the defendants. Citing the requirement in Federal Rule 26 to provide a “complete statement of all opinions” of an expert witness, and to supplement any such disclosures in a “timely manner,” the Court noted that these rules are intended to “prevent the practice of ‘sandbagging’ an opposing party with new evidence.” The sanction for “sandbagging” is spelled out in Federal Rule 37 — the party making an untimely disclosure of expert opinions is precluded from using those opinions as “evidence on a motion, at a hearing, or at a trial.”

To be sure, the court considered mitigating factors that might prevent preclusion. However, it found that none of those factors applied here. For example, the opinions expressed in the Fan Report fell outside the scope of Dr. Fan’s initial expert report. As such, the new material would require discovery to be reopened to afford defendants an opportunity to rebut the new opinions. After eight years of discovery, the Court was not about to allow that to happen.

Several of the plaintiff’s excuses for the untimely disclosures – all rejected by the Court – bordered on the comical (not quite “the dog ate our expert report,” but close). For example, the plaintiff argued that the difficulty of the subject matter prevented timely disclosure of the Fan Report. The court agreed that the subject matter was difficult, but noted that after 8 years of discovery, plaintiff “had more than enough time to get its expert disclosures in on time.”

Plaintiff also contended that Dr. Fan is a “very, very busy [and] very, very expensive” expert and, thus, plaintiff had only been in touch with him “a few times” preceding the close of discovery. The court’s response stated the obvious — “if a retained expert lacks the time to comply with the schedule set by the Court, the party should retain another expert.”

Finally, the court rejected as completely unfounded plaintiff’s allegations that the defendants had committed fraud during discovery by destroying or withholding relevant evidence.

Based on the foregoing, the court precluded the plaintiff from using the Fan Report in opposition to defendant’s motion for summary judgment.

The moral of the story is clear – compliance with court-imposed expert discovery deadlines is not optional, absent mitigating factors identified in the relevant caselaw. And to the extent such mitigating circumstances exist, they should be brought promptly to the court’s attention. And the longer a case drags on, the less patience a court is likely to have for flimsy excuses for non-compliance.

We invite you to share any “war stories” you may have relating to non-compliance with expert discovery deadlines.
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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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