No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations

In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008)

In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions.  The court rejected defendants’ argument that Rule 26(a)(2)(B) required that the plaintiffs’ experts produce all drafts of their reports:

The Court is not convinced that the plain language of Rule 26(a)(2)(B) imposes an obligation on a party or its experts to preserve and produce drafts of an expert’s report.  See, e.g., Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 142 n. 7 (3d Cir. 2001) (“The Supreme Court and this Court have repeatedly held that the Federal Rules of Civil Procedure, like any other statute, should be given their plain meaning.”).  The Rule does not expressly include draft opinions in the list of what the expert must disclose.  Instead, the Rule requires that an expert’s report contain a list of the data and other information on which he relied.  Fed. R. Civ.P . 26(a)(2)(B).  It does not seem logical that the Rule would require the final report to include a list of all the drafts of that report.  Further, because most experts now draft their reports on the computer, adding to and subtracting from the document, it would be impractical to require the production of all drafts.  For example, any time an expert added or subtracted a section, a paragraph, a sentence or even a word, the Defendants’ reading of the Rules would require the expert to save the draft and preserve it for production later.  This is a completely unworkable reading of the Rules and would mire the courts in battles over each draft of an expert’s report.  The Court concludes that this interpretation comports with neither the plain meaning of the Rule nor its policy.

The court also disagreed with defendants’ argument that draft reports fall into the category of data or information “considered” by the expert, which must be produced:  “The expert does not really ‘consider’ prior drafts in forming his opinion; the prior drafts are simply preliminary iterations of his opinion.  Rather than ‘consider’ his prior thoughts and statements, in editing the report the expert is considering the underlying data which forms the basis of the revisions.”

Consequently, the court concluded that the destruction of their draft reports by the plaintiffs’ experts did not constitute spoliation of evidence.

The court went on to concluded that, even if there were some discoverable information contained in the draft reports which were not preserved, the drastic remedy sought by defendants (exclusion of the experts’ testimony and/or reports) was not warranted by the facts.  First, plaintiffs’ degree of fault in this case was “de minimis”:

The Plaintiffs’ experts did not take physical documents or other evidence and destroy them.  Rather, the Plaintiffs’ experts simply made corrections to their reports on their computers and failed to save prior drafts.  It appears that the Defendants’ experts did the same.  It would be impossible for the Court to require that all “drafts” of expert reports be produced because it might require that an expert retain and print his report every time a single change was made to it.  This is not required to understand the basis for an expert’s opinion and would impede rather than aid cross-examination of the expert.

Second, prejudice to the defendants was limited; defendants were able to cross-examine plaintiffs’ experts in depositions and at court hearings.  Further, the court noted that the danger articulated by many courts (that the trier of fact could be misled by an expert’s testimony which is influenced by attorneys) was of much less concern in a bench trial than a trial by jury.