United States District Court, D. New Hampshire
Mary Saucedo, et al.
William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.
McCafferty United States District Judge.
move to compel production of an expert report for one of
defendants' disclosed experts, David Scanlan. Plaintiffs
argue that Scanlan is a retained expert to whom the report
requirements of Federal Rule of Civil Procedure
26(a)(2)(B) apply. In the alternative, plaintiffs assert that
the disclosure provided by defendants does not meet the
requirements of Rule 26(a)(2)(C). Defendants object. For the
following reasons, plaintiffs' motion is denied.
initial matter, the court notes that its order is limited to
addressing whether defendants' disclosure of Scanlan is
consistent with Rule 26; at this time, the court declines to
address the other issues that plaintiffs discuss in the
course of their motion.
Rule 26(a)(2)(A), a party must disclose the identity of any
witness it may use at trial to present expert testimony or
evidence.” In re Prograf Antitrust Litig., No.
1:11-md-02242-RWZ, 2014 WL 4745954, at *4 (D. Mass. June 10,
2014). For purposes of expert reports, Rule 26 “divides
expert witnesses into two categories.” Id. In
the first category is any expert who is “retained or
specially employed to provide expert testimony in the case or
 whose duties as the party's employee regularly involve
giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B).
“[A] detailed written report must accompany the
disclosure” of such an expert. In re Prograf
Antitrust Litig., 2014 WL 4745954, at *4; see
Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi) (listing report
requirements). For any expert not falling into the first
category, the party need only provide a disclosure describing
“the subject matter of the witness's testimony and
a summary of the facts and opinions to which the witness is
expected to testify.” In re Prograf Antitrust
Litig., 2014 WL 4745954, at *4; see Fed.R.Civ.P.
Rule 26(a)(2)(B) “covers two types of experts: (i)
‘retained or specially employed' experts who meet
certain criteria and (ii) employees of a party who meet
certain criteria.” Downey v. Bob's Discount
Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011).
The First Circuit has held that a “retained or
specially employed” expert is one who “without
prior knowledge of the facts giving rise to litigation is
recruited to provide expert opinion testimony.”
Id. This is in contrast to a “percipient
witness who happens to be an expert”- that is, an
expert whose “opinion testimony arises not from his
enlistment as an expert but, rather, from his ground-level
involvement in the events giving rise to the
litigation.” Id. A treating physician is the
prototypical expert who is exempt from the stringent report
case, the court concludes that Scanlan is not an expert
subject to the report requirements of Rule 26(a)(2)(B).
Scanlan is the Deputy Secretary of State, and has been for
fifteen years. He oversees the day-to-day administration of
the Secretary of State's office, including election
operations. Defendants state that Scanlan has been disclosed
as an expert witness on two previous occasions, but has never
actually testified as an expert. Therefore, Scanlan is not an
employee whose duties regularly involve giving expert
testimony. See Fed.R.Civ.P. 26(a)(2)(B).
does Scanlan appear to come within the scope of a
“retained or specially employed”
expert. Id. Indeed, Scanlan's
expected testimony appears to be largely factual. He intends
to explain the duties that moderators perform on election
day, how RSA 659:50 has been interpreted and implemented by
the State, and how the State oversees and trains moderators.
Defendants also intend to have Scanlan testify about the
historical rates of rejection for absentee ballots.
sure, defendants also intend to have Scanlan testify to
matters that may go beyond the merely factual. For example,
Scanlan will testify to “the purpose and history behind
the State's adoption of RSA 659:50” and “the
extent to which the rejections of the 2016 absentee ballots
obtained in connection with Plaintiffs' subpoenas . . .
were consistent with the law and the State's training on
the topic.” Doc. no. 44-1 at 2-3. Further, Scanlan will
opine that RSA 659:50 “is being consistently (and not
arbitrarily) applied in towns across the State” and
“is an efficient and effective means of protecting
legitimate state interests.” Id. at 3.
as the court reads defendants' expert disclosure,
Scanlan's opinions appear to be grounded in, and couched
in terms of, his personal knowledge of the State's
interpretation and implementation of RSA 659:50. See
Downey, 633 F.3d at 7. He does not come to the
litigation as a “stranger, ” drawing his opinion
from an independent methodology and “facts supplied by
others, ” but as a longtime participant in the
State's practices with respect to the statute.
Id. He is thus not a retained expert, even if some
of his ultimate opinions relate to matters that arose from
this litigation. See Id. (stating that an expert
need not provide a report under Rule 26(a)(2)(B) where his
opinion “about causation is premised on personal
knowledge and observations made in the course of
treatment”); see also Advisory Committee Notes on 2010
Amendment to Fed.R.Civ.P. 26 (“Frequent examples [of
experts not required to provide reports] include physicians
or other health care professionals and employees of a
party who do not regularly provide expert
testimony.” (emphasis added)).
to the extent Scanlan's expected testimony can be
considered expert opinion, defendants were only required to
provide a disclosure stating the subject matter of his
testimony and a summary of the facts and opinions to which he
is expected to testify. In re Prograf Antitrust
Litig., 2014 WL 4745954, at *4. In assessing whether a
disclosure is sufficient, the court is mindful that it must
balance competing interests. On the one hand, the Advisory
Committee notes to Rule 26(a)(2)(C) emphasize that
“[t]his disclosure is considerably less extensive than
the report required by Rule 26(a)(2)(B), ” and that
“[c]ourts must take care against requiring undue
detail.” Advisory Committee Notes on 2010 Amendment to
Fed.R.Civ.P. 26. On the other hand, a generic, conclusory, or
otherwise inadequate disclosure does not serve its
purposes-to increase efficiency and reduce unfair surprise.
See Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance
Co., Ltd., No. 4:13CV1043SPM, 2015 WL 8770712, at *2
(E.D. Mo. Dec. 15, 2015); Cooke v. Town of Colorado
City, No. CV 10-08105, 2013 WL 551508, at *4 (D. Ariz.
Feb. 13, 2013) (stating that the purpose of disclosure is
“to allow the party . . . [to] immediately be able to
identify whether it needs a responsive witness and the
information that such responsive witness would need to
court finds defendants' disclosure to be adequate under
Rule 26(a)(2)(C). In the disclosure, defendants identify the
overall subject matter of Scanlan's testimony
(“elections administration”). Doc. no. 44-1 at 2.
The disclosure also lists Scanlan's opinions, along with
the specific factual topics about which he will testify. The
disclosure provides more than mere “generic, high-level
references to the subject matter of the entire case.”
Emerson Elec. Co., 2015 WL 8770712, at *2.
Defendants also state that they have supplemented their
disclosure by providing the documents and statistical data on
which Scanlan intends to rely. See Owens-Hart v. Howard
Univ., 317 F.R.D. 1, 4 (D.D.C. 2016) (finding
26(a)(2)(C) disclosure of treating physician sufficient,
where party supplemented written disclosure with specific
medical records that provided factual details regarding
physician's diagnosis and treatment). Thus, the
disclosure appears to reasonably apprise plaintiffs of
Scanlan's expected testimony and reduce the risk of
unfair surprise. Consistent with the Advisory Committee
notes, the court declines to impose any more extensive burden
reasons stated herein, plaintiffs' motion ...