Failure to disclose could be disastrous

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Editor’s Note: The following is the second of a two-part article on the new Minnesota Rules of Civil Procedure concerning expert disclosures.

In the July 22 Minnesota Lawyer, the first part of this article explained the requirement of a written expert report, the type of expert who must provide a written report, and rebuttal and supplemental expert disclosures set forth in Rule 26.01(b), Minnesota Rules of Civil Procedure. Part two of this article addresses the consequences of failing to make timely expert disclosures and potential discovery issues that may linger after the Minnesota Supreme Court’s recent amendments to the rules concerning expert disclosures.

1. Under Minnesota’s new Rule 37.03(a), the consequence for failing to disclose an expert on time is exclusion of the testimony, unless the failure is “substantially justified” or “harmless.”

Prior to the 2013 amendments to the Minnesota rules, the consequences for failing to disclose expert opinions appeared to be more lenient in comparison to the federal rules. The Minnesota Practice handbook explained the old standard as follows: “Untimely disclosure of expert testimony should not result in exclusion unless the failure to disclose is ‘inexcusable’ and prejudices the opposing party.” 23 Minn. Prac., Trial Handbook For Minn. Lawyers sec. 2:26 (2012 ed.) (citations omitted). In light of the amendment to Rule 37.03(a), it is doubtful whether the old standard remains viable. The new standard is that the failure to disclose must be “substantially justified” or “harmless” in order to overcome the operation of the rule disallowing the undisclosed expert testimony. Minn. R. Civ. P. 37.03(a).

Since Minnesota’s Rule 37.03(a) reads the same as the federal Rule 37(c)(1), it is likely that Minnesota state courts will look to federal decisions for guidance in interpreting this new rule. The federal courts “do not countenance, let alone encourage, trials by ambush, and the failure to properly, and timely, disclose expert opinion evidence, results in its exclusion.” Lisdahl v. Mayo Found. for Med. Educ. & Research, 698 F. Supp. 2d 1081, 1113 (D. Minn. 2010). The 8th Circuit has instructed that “[w]hen a party fails to … identify a witness in compliance with [Fed. R. Civ. P.] 26(a) or (e) … [t]he district court may exclude the … testimony as a self-executing sanction unless the party’s failure to comply is substantially justified or harmless.” Doe v. Young, 664 F.3d 727, 734 (8th Cir. 2011) (quoting Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citing Fed. R. Civ. P. 37(c)(1)).

The federal appellate court reviews a district court’s decision to exclude testimony due to an untimely expert disclosure for an abuse of discretion. See White v. Howmedica, Inc., 490 F.3d 1014, 1016 (8th Cir. 2007). Minnesota’s appellate courts also review such decisions for an abuse of discretion. See City of Moorhead v. Red River Valley Co-op. Power Ass’n, 830 N.W.2d 32, 39 (Minn. 2013). Where an untimely expert disclosure is neither substantially justified nor harmless, the caselaw indicates that it is within the power of the District Court to impose sanctions under Rules 16 and 37 and exclude expert testimony.

When fashioning a remedy for the failure to disclose, “the district court should consider, inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citation omitted). When determining whether an untimely disclosure is “harmless,” a court may “consider both the harm to the opposing party as well as harm that a continuance may cause to a court’s calendar.” In re Viagra Products Liab. Litig., 658 F. Supp. 2d 936, 947 (D. Minn. 2009) (citing Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998)). The 8th Circuit — when finding no abuse of discretion in striking undisclosed witness affidavits — recently observed that the District Court had determined that “lesser sanctions would not adequately penalize the plaintiffs” or “deter future litigants from refusing to comply with discovery requests.” Carmody v. Kansas City Bd. of Police Comm’rs, No. 12-3051, 2013 WL 1729517 (8th Cir. Apr. 23, 2013). In sum, the District Court has discretion to exclude expert testimony that a party failed to disclose in a timely manner where the party had ample time to comply with the order to disclose expert testimony.

2. Potential discovery issues about expert communications and drafts may linger after these amendments.

The federal rules specifically provide work-product protection to draft expert reports and communications between a party’s attorney and expert witness. See Fed. R. Civ. P. 26(b)(3)(A)–(B); Fed. R. Civ. P. 26(b)(4)(B)–(C). Such protections from discovery tend to facilitate open communication between a party’s attorneys and experts. Without fearing disclosure, the experts can take notes and prepare draft reports, and the attorneys can review the drafts. Prior to the federal rules amendment in 2010, discovery into attorney-expert communications and draft expert reports had “undesirable effects.” Fed. R. Civ. P. 26(b)(4), Adv. Comm. Note, 2010. The federal rules are “designed to protect counsel’s work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery.” Id. The adverse party still may obtain discovery of those materials, however, if “it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). But it will be “rare” for a party to be able to make such a showing. Fed. R. Civ. P. 26(b)(4), Adv. Comm. Note, 2010.

Minnesota’s amendments to Rule 26, however, did not incorporate the same discovery protections for expert drafts and communications as the federal rules. See Order Adopting Amendments to the Rules of Civil Procedure and General Rules of Practice Relating to the Civil Justice Reform Task Force (Minn. Feb. 4, 2013). This may raise questions about whether draft expert reports and communications between a party’s attorney and expert witness are potentially discoverable.

Draft expert reports are unlikely to be considered material that must be disclosed under Rule 26.01(b) because the Minnesota Rule incorporated the “facts or data” language from the federal rules. After the 2010 amendments to the federal rules, Rule 26(a) limits the disclosure requirement for expert witness to “facts or data considered by the witness” as opposed to the broader language, “data or other information,” in the previous version of the rule. Fed. R. Civ. P. 26(a)(2)(B)(ii). The purpose of the 2010 amendment to the federal rule was to alter the outcome in cases that had required disclosure of all attorney-expert communications and draft reports. See Fed. R. Civ. P. 26(a)(2)(B), Adv. Comm. Note, 2010. The amendment narrowed the testifying expert’s required disclosures by focusing on “facts or data” and excluding non-factual theories or mental impressions of counsel. While expert reports must disclose all “facts and data” the experts considered in forming their opinions, they need not disclose legal counsel’s communications of non-factual legal theories and arguments. Because Minnesota’s Rule 26.01(b)(2)(B) uses the same “facts or data” phrase as the federal rule, the necessary disclosures should be similarly limited. Draft reports, or communications relaying non-factual theories or mental impressions of counsel, are unlikely to constitute “facts or data considered” by the expert.

Resolving the question of disclosure obligations for draft reports, however, may not resolve questions about whether draft reports are potentially discoverable. It also may not resolve questions about whether communications between a party’s attorney and expert witness are potentially discoverable. The courts may have to resolve such questions until the Minnesota Supreme Court makes further amendments to the rules. Since Minnesota’s rules have embraced the disclosure requirements in Fed. R. Civ. P. 26(a)(2), it would be sensible to add the protections for expert draft reports and communications in Fed. R. Civ. P. 26(b)(4) to Minnesota’s rules.

Conclusion

After July 1, when you have a lawsuit that will involve expert testimony, you will want to carefully review Minnesota’s new expert disclosure requirements. You should determine whether your type of expert must provide a written report, follow the requirements of the written expert report, and make the necessary rebuttal or supplemental expert disclosures. Following Minnesota’s new expert disclosure rules will help you avoid the potentially disastrous consequences of failing to make timely expert disclosures.

Monte Mills is a partner at Greene Espel. He often works with experts as he practices in the areas of constitutional litigation, governmental defense, business litigation and appellate litigation.