Sex, Lies, & Suicide: Supplemental Report Excluded from Trial

Mistress sued a variety of parties and designated Security Expert to give opinion testimony about the security provided at the complex where she lived and where this event occurred.  Mistress first contacted Security Expert about the case almost nine months before the initial expert disclosure deadline.  She timely disclosed a report from him that included a list of documents reviewed as a basis for his report.  The last page stated “I am currently reviewing other massive documents and anticipate more materials will be produced in the near future, such as depositions, manuals, records, files, video tapes, etc. Supplemental reports will follow as those materials are produced, processed and analyzed.”  This line was prophetic.

A month later Mistress disclosed Security Expert’s response to the defense expert.  He concluded that report by stating “I am currently reviewing other documents and anticipate more materials will be produced in the future, such as depositions, manuals, records, files, video tapes, etc.  Supplemental reports will follow as those materials are processed and analyzed.”  Oh guuurrrlll…

Approximately 10 weeks later, the parties were preparing for Security Expert’s deposition.  The day before, at 2:52 p.m. Mistress disclosed a supplemental report from Security Expert.  The supplemental report listed the additional documents he considered.  Each had been produced long before the initial expert disclosure deadline, as laboriously detailed in a later motion.

During his deposition the next day, Security Expert was specifically asked what new documents he received since his initial report.  He explained it was not that he received new documents, it was that he just did not have enough time when preparing his initial report to review all the documentation he received as thoroughly as he would have liked.

15 Q. What new facts were you provided between the
16 time period of June 23rd and the date of your
17 supplemental report of August 4th? What new facts
18 were you provided in this case? Or none?
19 A. I’m not — it was not a matter of being
20 provided; it was a matter of being able to actually
21 examine the documents, because the documents in this
22 case was measured in gigabytes. So actually, by the
23 time I got to a certain set of documents to arrive at
24 a solid, preliminary opinion and a good professional
25 conclusion, that report went out.
1 By the time I got to the other docs that I
2 didn’t have the same quality time to drill down on,
3 they then produced that supplemental. And that’s
4 typically the case. Because you can’t, in many cases
5 with the time that’s available, do justice to every
6 deposition, every publication that comes in. You work
7 with the main ones to provide your first opinion and
8 then you have to basically go back and retract —
9 retrace — on documents that you have not had a chance
10 to examine.

Security Expert later reiterated that his supplemental report was a result of being too busy.  “Some docs I got and simply could not get to because not only of the volume of this case but other cases. So they are put, filed away, and earmarked for me to come back to them because I never had the benefit of actually thoroughly examining them.”  This was apparently consistent with Security Expert’s belief that being an expert witness allows to “follow up with other documents you have not thoroughly drilled down on. So it has always been my practice. So the supplying of the sup to you was actually a practice that I have done in several times in other cases.”  He even testified “[t]here are other documents I have that I have not even examined yet that are still in my pipeline to get to on this case.”

I later moved to exclude that supplemental report because it was really the expert’s initial report and that argued was improper.  The deposition gave great sound bites.  Security Expert simply did not have time to complete his initial report by the initial disclosure deadline and then did not have sufficient time to get to the supplemental report either.  “I simply could not get to it. I have been working on that volume two intermittently for three weeks now. In terms of other demands and demands of this case, I was not able to completely drill down until this last week.”  “Some docs I got and simply could not get to because not only of the volume of this case but other cases. So they are put, filed away, and earmarked for me to come back to them because I never had the benefit of actually thoroughly examining them.”  Security Expert was so busy with other work that he remarked “[a]ctually, I am surprised I made it to this date,” meaning the deposition.

The district court excluded the supplemental report.  This was problematic for Mistress because that report was what considered the bulk of the documents at issue in the case.  It set Security Expert up for a fun cross at trial.