Experts may have heard that the federal discovery Rule 26 protects draft reports from discovery. But a side ruling in a recently reported patent infringement case makes clear this rule is negotiable. The lesson is that, if you want to limit the risk of exposure, use the phone or web technology to discuss your draft.

Adulterated vs. unadulterated draft: The defendants in a patent infringement case revolving around snowmobile technology asked the court to order the plaintiffs to produce draft reports that were exchanged between two of the plaintiffs’ technical experts. As it turned out, one expert had sent his draft to the other expert, and vice versa, for review and comments. As one expert explained in his deposition: “Rarely do I ever view a report and not have at least … some suggestion on it.” The exchange was part of what he called “the quality assurance process” that took place before the experts finalized their respective reports.

Federal Rule of Civil Procedure 26(b)(4)(B) protects “drafts of any report or disclosure … regardless of the form in which the draft is recorded.” The court in the instant case acknowledged that a pretrial order stated that drafts of expert reports generally were not discoverable. But, said the court, at issue was not “an unadulterated expert report draft copy” but draft reports with editorial comments from a different expert. According to the court, considering Rule 26(a)(2)(B)(ii) provides for disclosure of “all the facts and data” another party’s expert has considered in forming his or her expert opinion, the defendants were entitled to see the comments on the contested drafts and, for context, also the portions of the drafts to which the comments related.

The case is Bombardier Rec. Prods. v. Arctic Cat Inc., 2016 U.S. Dist. LEXIS 184531 (April 19, 2016). A digest discussing the discovery ruling and the related patent ruling is available at BVLaw.