Marked-up draft expert reports may be discoverable

Bombardier Rec. Prods. v. Arctic Cat Inc., 2016 U.S. Dist. LEXIS 184531 (April 19, 2016); Bombardier Rec. Prods. v. Arctic Cat Inc., 2017 U.S. Dist. LEXIS 26517 (Feb. 24, 2017)

Federal discovery rule 26 expressly protects draft expert reports from discovery. But experts testifying in federal court know that this protection is by no means absolute. Questions as to the scope of protection persist, and a recent discovery ruling in a patent infringement case makes clear that concern over the strength of protection is warranted.  

Two snowmobile manufacturers were locked in a patent infringement case. The defendants asked the court to order the plaintiffs to produce draft reports that were exchanged between two of the plaintiffs’ technical experts. Each expert had sent a draft to the other for comments before each expert finalized his and her draft reports.

In ruling on the defendants’ motion, the trial court first acknowledged that a pretrial order was in effect that stated that drafts of expert reports were not discoverable. But, said the court, in this instance, the drafts were discoverable because they were not “unadulterated” drafts but included 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.

For an in-depth discussion of the discovery ruling and the related patent case, click here.