No Sanctions for Testifying Experts’ Failure to Retain Drafts or Preserve Email to and from Counsel

Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007)

In this case, the University of Pittsburgh alleged that defendants misappropriated the University’s rights and interests in valuable medical scanning technology that the University alleged was developed collaboratively at its campus over the course of several years.  In addition to Daubert motions, defendants moved the court for an excluding the testimony of plaintiff’s proposed experts based on spoliation of evidence.  Specifically, defendants alleged that the experts, along with plaintiff’s counsel, admittedly destroyed copies of emails and draft expert reports.  Defendants argued that, as a result of the spoliation, they were unfairly prejudiced and denied the opportunity to cross-examine the witnesses as to counsel’s contributions to their expert reports.

In their First Request for Production of Documents served in early 2005, defendants had requested the plaintiff produce "[a]ll [d]ocuments provided to or by [y]ou to, revised by, relied upon, or otherwise used in consultation with or as a basis for consultation with, any expert witness identified by [y]ou pursuant to Fed. R. Civ. Proc. 26(a)(2)."  In its response, plaintiff objected to this request as premature and stated that "[r]esponsive documents will be produced in accordance with Federal Rule of Civil Procedure 26(a)(2) and the Case Management Order applicable to this matter."

After experts were identified, defendants served subpoenas on plaintiff’s experts (Wooldridge and Lewellen) commanding them to appear for deposition and produce the following documents:

1. All documents reviewed by you or anyone that assisted you in connection with preparing your Expert Report.
2. Any and all documents that you relied upon in preparing your Expert Report.
3. All drafts of the Expert Report.
4. All notes made by you or anyone that assisted you during the preparation of your Expert Report.
5. All correspondence between you and any other individual, including, but not limited to counsel for the University of Pittsburgh related to the Expert Report.
6. All documents provided to you by counsel for the University of Pittsburgh or any other representative of the University of Pittsburgh in connection with the preparation of your Expert Report.
7. All documents contained within your files related in any way to the preparation of your Expert Report.

At deposition, the experts testified that they kept only one working draft of their reports and had not retained successive drafts or marked-up versions of the draft reports received from counsel via email.  They further testified that they did not retain emails from plaintiff’s counsel upon the suggestion of plaintiff’s counsel.

Defendants argued that draft expert reports and communications between experts and counsel were discoverable pursuant to Rule 26(a)(2).  Defendants further contended that Rule 26(a)(2) imposed an affirmative duty upon an expert "to preserve all documents, including e-mails and drafts of a report."  Defendants contended that. because plaintiff’s experts and counsel destroyed discoverable evidence, plaintiff should be sanctioned by precluding the experts from testifying at trial.

The court rejected defendants’ argument:

Contrary to the defendants’ assertion, the Court does not read Rule 26(a)(2) to impose an “affirmative duty” upon an expert to preserve "all documents," particularly report drafts, and the defendants do not cite any support for such a sweeping obligation.  Nor does Rule 26(a)(2) require that draft reports be disclosed as part of an expert disclosure.  While not technically a required subject of disclosure, and contrary to the plaintiff’s arguments, draft reports are certainly discoverable, and the defendants contend that they requested any and all expert report drafts in their February, 2005 discovery requests.  This discovery request, however, is far from the model of clarity.  The request seeks the production of "[a]ll [d]ocuments provided to or by [y]ou to, revised by, relied upon, or otherwise used in consultation with or as a basis for consultation with, any expert witness…."  Even if this awkwardly worded request could be construed to require production of draft reports (and the Court finds it does not), the Court finds that this request, served well over a year prior to the date that any expert disclosures were required to be made, to be an unreasonable request, essentially imposing a continuing obligation on a party to disclose any document from an expert – whether it be a letter or a draft report – as it is received through the consultation process.  Such a requirement would virtually nullify the expert disclosure deadline established by the Court.

The court went on to find that draft expert reports were clearly requested in defendants’ subpoenas to Wooldridge and Lewellen.  “Only at that point were the experts under a duty to retain any drafts and produce them at their depositions.”  The court stated that it appeared that any draft reports that existed had already been destroyed by the time the subpoenas were served.  Thus, the court found that the destruction of prior drafts was not sanctionable.

The court reached a slightly different conclusion with respect to email communications between the experts and plaintiff’s counsel.  It found that the emails were the target of multiple discovery requests, namely the defendants’ February, 2005 request for production and the 2006 subpoenas to the experts.  The court found that it was improper for plaintiff’s counsel to have instructed and/or otherwise suggested to the experts that such communications should be destroyed.  It noted that plaintiff’s counsel had acknowledged this error and apologized to the court and opposing counsel.

Notwithstanding this finding, the court declined to impose any sanctions.  The court concluded that defendants were not prejudiced, since defendants were able to “fully cross-examine” the witnesses at the Daubert hearing.  The court further noted that any prejudice that might have occurred (i.e., depriving defendants a document that may have been used to cross-examine and possibly impeach the experts) was “minimal” given the collateral nature of the issue.