Yes, I've been eagerly awaiting the Court's ruling on EDIG's Motion for Partial Summary Judgment (Doc 214). Going from memory only, I thought the Court said it would rule on this motion on 19 Jan 09 but I'll do some digging to confirm. EDIG has until tomorrow to file their Rule 26(a)(2) Disclosures of Expert on Technical Issues. I looked up a little information about Rule 26 and found an interesting article that I took excerpts from. LL or Gil could probably provide more information.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment

by Keith H. Beyler

INTRODUCTION

Federal Rule of Civil Procedure 26 requires each party to disclose the identity of its expert witnesses and to provide written reports prepared by certain of these experts. Federal Rule 26 was amended in 1970 to permit discovery of the facts and opinions that expert witnesses acquire or develop in anticipation of litigation or for trial. This 1970 amendment overcame privilege and work product objections to expert witness discovery. Under the amendment’s two-step expert witness discovery procedure, a party first served a standard interrogatory that essentially asked another party to identify its expert witnesses and to state the substance of their expected testimony. With court permission, a party then could depose the experts and take other expert witness discovery. Federal Rule 26 was further amended in 1993 to substitute expert testimony disclosure for some expert witness discovery. Since 1993, Federal Rule 26 has required each party to make a series of disclosures to other parties B an initial disclosure, an expert testimony disclosure, and a pretrial disclosure.

As part of the required expert testimony disclosure, each party must identify all of its expert witnesses. In addition, each party must provide a written report prepared by any expert who is either a retained expert witness (a person “retained . . . to provide expert testimony in the case”) or the equivalent of a retained expert witness (a person “specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony”). The expert’s report must contain a complete statement of all opinions the expert will express, the basis and reasons for the opinions, the data or other information the expert considered, and any exhibits the expert will use to summarize or support the opinions. The report also must reveal the expert’s qualifications, compensation, and prior testimony.

This written report requirement demands more detailed information than typically was elicited by the 1970 amendment’s standard expert witness interrogatory. In the judgment of the Advisory Committee on the Federal Rules of Civil Procedure, the answer to that interrogatory “was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness.” Therefore, the Advisory Committee designed the written report requirement to yield “a detailed and complete [statement of] the testimony the witness is expected to present during direct examination.” The written report requirement meshes with expert witness discovery in the following way: The deposition of any expert witness can be taken as a matter of right, but the deposition of an expert who is covered by the written report requirement must await the expert’s report. This deposition timing requirement is designed to make expert witness deposition taking more efficient.

The duty to disclose expert testimony continues after the expert is deposed. If a party later learns of a material omission or error in its expert’s written report or its expert’s deposition testimony, the party must make the addition or correction known to other parties through a supplemental disclosure. The part of this supplemental disclosure requirement that covers deposition testimony applies uniquely to experts who are covered by the written report requirement i.e., a party ordinarily has no duty to supplement its other witnesses’ deposition testimony. If a party fails to supplement its expert’s written report or its expert’s deposition testimony, the party generally cannot elicit the undisclosed information from the expert at trial. Because the written report requirement covers only retained expert witnesses and experts equivalent to retained expert witnesses, parties do not provide written reports for most employee experts, party experts, and independent experts. These non-retained expert witnesses are identified in the expert testimony disclosure, but the disclosure reveals nothing else about them. A party gets more information about another party’s non-retained expert witnesses by taking expert witness discovery.