No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations
In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008)
In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions. The court rejected defendants’ argument that Rule 26(a)(2)(B) required that the plaintiffs’ experts produce all drafts of their reports:
The Court is not convinced that the plain language of Rule 26(a)(2)(B) imposes an obligation on a party or its experts to preserve and produce drafts of an expert’s report. See, e.g., Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 142 n. 7 (3d Cir. 2001) (“The Supreme Court and this Court have repeatedly held that the Federal Rules of Civil Procedure, like any other statute, should be given their plain meaning.”). The Rule does not expressly include draft opinions in the list of what the expert must disclose. Instead, the Rule requires that an expert’s report contain a list of the data and other information on which he relied. Fed. R. Civ.P . 26(a)(2)(B). It does not seem logical that the Rule would require the final report to include a list of all the drafts of that report. Further, because most experts now draft their reports on the computer, adding to and subtracting from the document, it would be impractical to require the production of all drafts. For example, any time an expert added or subtracted a section, a paragraph, a sentence or even a word, the Defendants’ reading of the Rules would require the expert to save the draft and preserve it for production later. This is a completely unworkable reading of the Rules and would mire the courts in battles over each draft of an expert’s report. The Court concludes that this interpretation comports with neither the plain meaning of the Rule nor its policy.