Providing Opposing Expert’s Report
By: Dennis J. Ryan, Forensic Document Examiner
Many times, the issue comes up as to whether an expert should see the opposing expert’s report. In the initial phone call or email, the attorney may inform the expert that opposing counsel has retained an expert, but they are not sure of his or her name. Other times, the attorney may casually include the opposing expert’s report with the initial paperwork that they submit to the expert.
There are two schools of thought on whether an opposing expert’s report should be disclosed to the other expert. One school of thought is not to disclose the other expert’s report. There are reasons why one could argue not to disclose the other expert’s report. The principal reason is so that the expert can conduct their own independent examination. There are also some instances in which the attorney is not aware that a report has been written by the opposing expert, and they fail to inquire about the opposing expert’s report. In some arbitration cases where discovery is “fast and loose,” there is no duty to turn over the opposing expert’s report.
One must be cautious in situations where the opposing expert has written a report, but the attorney chooses to instead disclose the expert and their findings in some type of expert disclosure. In this case, these expert disclosures replace the opposing expert’s report, and the original report is never disclosed. Some of these expert disclosures do not actually reflect the findings of the expert. In this situation, the expert has written a report, but the attorney has taken that report and editorialized the report into a disclosure that can portray the expert’s findings out of context so that it will better support his client’s position. Rarely, if ever, does the expert see this disclosure, and a possible disparity exists with their findings and what the attorney is putting forth in the disclosure. In the federal courts, sometimes it is called the “702 letter.” This letter is written pursuant to the Federal Rules of Evidence Rule 702 Testimony of Expert Witnesses. In either scenario, the attorney can prepare the disclosure without the expert getting a final review. This may create a difficult situation for the expert, who now needs to explain why their findings are different than the expert disclosure.
The second school of thought is to provide the expert with the opposing expert’s report. In this setting, the expert is aware that the opposing expert has written a report, and a copy of that report is turned over to the expert being retained. This method is the preferred method for several reasons. First and foremost, reviewing an opposing expert’s report gives the other expert a list of the items that the opposing looked at in their examination. Did both experts get the same material to examine? If one expert examined the original material, and the other expert saw only pictures of the material, the later expert is working at a disadvantage. This is a very important question and can remove a lot of the guesswork and surprises at any later point. Some attorneys may “cherry pick” what they give their expert and withhold some crucial pieces of evidence. The attorney will do this in order to try and influence the expert’s opinion. This is counterproductive and borders on unethical. Any expert wants to be on the same “level playing field” as the other expert in the case.
Another reason for viewing the opposing expert’s report is to give the expert to review the opposing expert’s opinion and determine if the conclusions that they have reached are based on sound principles that are generally expected in their field of expertise. No expert should draw a conclusion unless it is backed up with empirical data supporting their conclusions. An expert that draws conclusions that are not based on empirical data is likely an expert that is lacking the requisite training in that area of expertise or one that has “gone out on the limb” in their conclusions. This is where peer review is so important in any case where an expert has been retained.
What happens in the situation when there is a request by an attorney to critique the opposing expert’s report? That critique, if written, should be done separately and apart from the expert’s report of their findings. The report detailing their findings is a scientific report of the findings of the expert. There is no place in that report for a critique of an opposing expert’s report. Any critique may best be done in testimony and not written in a report format. An expert that critiques another expert’s report can be seen as vindictive and counterproductive.