Employee Stock Ownership Plan (ESOP) Expert WitnessesIntroduction: 

In late January, an Ohio federal court addressed a motion to compel additional information about a testifying expert witness to be disclosed. See Acosta v. Wilmington Tr.,N.A., Case No. 1:17-CV-1755. (N.D. Ohio 2019). The court was asked to require the expert to reveal specific information pertaining to prior work he had undertaken. See id. The motion was brought under Federal Rule of Civil Procedure (FRCP) 26, and the district judge denied the motion to compel based on its reading of the rule’s provisions, which are the focus of this article. 

Discussion: 

The witness under scrutiny is a business valuation expert, and the defendant made several claims in its motion to compel additional disclosures. See id. First, the movant alleged that FRCP 26(a)(2)(B)(i) “requires [the expert] to disclose the names of previous companies for whom he provided employee stock ownership plan-related services. Because Plaintiff stated in his deposition that his previous work providing employee stock plan-related services provided (at least in part) the basis for the opinions expressed in his report, Defendant argues that those company names are discoverable facts or data considered by the witness in forming his opinion. Id. at 2.  

The court agreed that while expert witnesses’ previous experiences in similar cases are a basis for the opinions they form, that fact, by itself, does not “entitle [a party] to everything [the expert] has worked on throughout his career.” Id. at 3. Instead, the judge concurred with the plaintiff that under FRCP 26(a)(2)(B)(iv)-(v), only work done within a specific and limited timeframe is discoverable. See id. The plaintiff disclosed the facts or data on which the witness based his report, which the court felt was sufficient. See id. 

The second argument the movant advanced was that the expert witness had an obligation to “disclose any documents relating to pre-litigation consultant work” he had done for the plaintiff. Id. In response, the plaintiff claimed to have partially addressed the request by “providing a list of documents” the expert “actually considered in forming his opinion.” Id. However, the plaintiff also contended that FRCP 26(b)(4) prohibited the defendant from having access to any drafts of the expert’s prior opinions. See id. The court agreed, finding that the 2010 amendments to FRCP 26(b)(4)(B) clearly protect “drafts of any report” from disclosure. Id. Moreover, the ruling explained, “As the advisory committee notes to this amendment discuss, Rule 26(b)(4) was intended to narrow the scope of expert discovery and preclude the discovery of expert report drafts.” Id. at 4.  

The defendant’s final assertion in support of its motion concerned a question asked of the plaintiff’s expert, which the witness refused to answer when deposed. See id. The inquiry related to “the number of times he opined that a valuation firm had erred in his past work for Plaintiff...as well as the number of times he opined that an employee stock ownership plan overpaid for stock. Defendant argues that this information is discoverable because it is probative of potential bias.Id. According to the plaintiff, the question sought information pertaining to the expert’s work as a consultant, “in which he was not expected to testify.Id. The plaintiff argued, Rule 26(b)(4)(D) bars discovery of this information. The rule states that a party may not . . . discover facts known or opinions held by an expert . . . who is not expected to be called as a witness at trial. Id.  

The district judge acknowledged that this final matter was perhaps the most complex issue raised. See id. Nonetheless, the court did not feel the need to resolve any ambiguities because “attorney-expert communications are generally privileged. And here, Plaintiff is the holder of the privilege because the [plaintiff’s organization] is the one who retained [the witness] in the past matters. This outcome is consistent with Rule 26(b)’s overall aim: to bar discovery of attorney-expert communications and encourage frank attorney-expert consultation.” Id. at 5. 

Conclusion: 

While a robust debate took place over when an expert’s prior experiences are discoverable, the court’s approach underscored an important principle. That principle is embodied in the FRCP 26, which has evolved over time to narrow the scope of discovery in several cases, particularly with respect to the issues raised by the defense. Moreover, the court makes emphasizes that certain privileges apply to attorney-expert communications, and consulting expert communications are not subject to discovery in most instances.