When an expert prepares a report, if it can be reasonably assumed that he relied on that report in forming his testimony, it must be disclosed to the opposing party. Even if the expert says that he did not rely on the report in forming his testimonial expert opinion.

Expert Reports: When Must You Disclose?

When Robocast saw the new UI (user interface) for the Microsoft Xbox 360 “Video” and “Home” channels, Windows 8 Xbox Music Box software, Bing.com, MSNBC.com, and MSN.com, all which utilized a video playlist or a changing tile function, they thought “hey, we have the patent on that UI.” While there are many nuances contained within this case as to the characteristics of each company’s UI, the important point to take away from this is that Robocast saw something in the Microsoft UI that they believed fell under a patent they had filed in 2006. Basically, Robocast saw that the new Microsoft UI operated in the same form and function as that which Robocast had previously patented. Therefore, Robocast brought suit for patent infringement against Microsoft.

This case is fraught with technical jargon and in depth explanations of the video playlist and changing tile functions employed by each company’s UI. However, this is an electronic discovery blog so I will give you what you came for. The electronic discovery issue presented itself in this case in the form of an expert report. Robocast had retained Professor James T. Berger to gather information and prepare reports regarding relevant information so that he would be able to form an opinion and testify as to the amount of damages owed to Robocast by Microsoft.

The problem arose when, in anticipation of Professor Berger’s expert testimony and receipt of his final reports, Microsoft requested the initial reports prepared by Professor Berger. Robocast refused to turn over these initial reports based on the argument that Professor Berger stated that he did not rely on these reports when he prepared his final report. Furthermore, he had deleted these reports from his computer shortly after creating them and was therefore unable to utilize them in preparing his final reports.

Ultimately the judge granted Microsoft’s motion to compel disclosure of the initial reports because he found “it difficult if not impossible to believe that an expert whose opinions are predicated upon the creation of a statistically-meaningful effort could have, in the statistical sense, completely ignored the data that had been previously collected by him.” Given the actions of the plaintiff and its expert, it seems safe to assume that there was some kind of unfavorable information in those initial reports that they did not wish to disclose. Therefore, the lesson here is that when an expert prepares a report, if it can be reasonably assumed that he relied on that report in forming his testimony, it must be disclosed to the opposing party. Even if the expert says that he did not rely on the report in forming his testimonial expert opinion. If there was unfavorable information in the initial reports that the plaintiffs did not want to disclose they should have hired a new expert.

A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, he clerks for the Monmouth Co. Office of the Public Defender.

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