Do analysts have a duty to disclose draft reports?

BVWireIssue #56-1
May 2, 2007

A new case examines the age-old question: how to handle draft valuation reports prepared in litigation.  Should analysts continually overwrite all electronic versions, or are the drafts subject to expert disclosure requirements?  Should they email drafts to the attorneys on the case—and are these emails discoverable?  At what point must analysts preserve all copies of and correspondence related to draft reports?

In Univ. of Pittsburgh v. Townsend (March 30, 2007), scientific experts for the plaintiff admitted to having destroyed draft reports on advice of counsel; they’d also failed to retain copies of the e-correspondence relating to the revisions.  The defendants claimed that not only was all this evidence discoverable—but experts generally have an affirmative duty to turn over all draft reports as part of their disclosure requirements under Rule 26 of the Federal Rules of Civil Procedure.  If they don’t, the sanction should be to preclude their testimony at trial.

The District Court (E.D. Tenn.) didn’t give the defendants everything they wanted, but it did exact an apology from plaintiff’s counsel; and its decision answers many questions experts and their attorneys may have—including how to pass a Daubert challenge, which the plaintiff’s valuation expert did with flying colors.  An abstract of the case will be published in the next issue of the Business Valuation Update™, and a copy of the full-text court opinion is currently available to subscribers of BVLaw™ at

New resources on preserving/managing e-evidence

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