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Parties fight over notes-containing expert report: draft or final version?

Several sessions at the recent AICPA conference in Las Vegas highlighted the importance of expert discovery in litigation and noted that draft reports continue to be a hot-button issue.

County of Maricopa v. Office Depot Inc.

In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.

Expert Report Containing Notes Qualifies as Draft Not Subject to Discovery

In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.

Claims Against Third-Party Appraisal Crumple Under ‘Palpable Error’ Standard

In buyout dispute, court rejects plaintiff’s request to set aside third-party appraisal performed pursuant to valuation agreement; court notes its limited role and high “palpable error” standard; alleged mistakes were not apparent on face of appraisal and there was no misconduct by appraiser.

Olli Salumeria Americana, LLC v. Vosmik

In buyout dispute, court rejects plaintiff’s request to set aside third-party appraisal performed pursuant to valuation agreement; court notes its limited role and high “palpable error” standard; alleged mistakes were not apparent on face of appraisal and there was no misconduct by appraiser.

Georgia-Pacific Analysis Satisfies Apportionment Requirement, Court Says

Court says under federal discovery rule applicable to expert testimony annotated draft expert reports are discoverable as to comments one expert made to other expert’s draft report and as to portion of the draft to which comment was made.

Marked-up draft expert reports may be discoverable

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.

Bombardier Rec. Prods. v. Arctic Cat Inc.

Court says under federal discovery rule applicable to expert testimony annotated draft expert reports are discoverable as to comments one expert made to other expert’s draft report and as to portion of the draft to which comment was made.

Georgia-Pacific Analysis Satisfies Apportionment Requirement, Court Says

Court says under federal discovery rule applicable to expert testimony annotated draft expert reports are discoverable as to comments one expert made to other expert’s draft report and as to portion of the draft to which comment was made.

Canadian Ruling on Use of Expert Draft Reports Crumbles on Appeal

Ontario Court of Appeal strikes down prior ruling mandating documentation and disclosure of communication between counsel and expert, noting expert-attorney collaboration is “essential” to ensure careful case preparation and timely delivery of justice.

Moore v. Getahun

Ontario Court of Appeal strikes down prior ruling mandating documentation and disclosure of communication between counsel and expert, noting expert-attorney collaboration is “essential” to ensure careful case preparation and timely delivery of justice.

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