UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Saucedo, et al.
v. Civil No. 17-cv-183-LM Opinion No. 2018 DNH 041 William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.
O R D E R
Plaintiffs 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.
As an 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.1
1 For example, plaintiffs suggest that Scanlan may not be qualified to opine on certain topics and that his dual role as an expert and party representative may lead to certain problems. “Under 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. 26(a)(2)(C)(i)-(ii).
Thus, 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
2 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 requirements. Id.
In this 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).
Nor does Scanlan appear to come within the scope of a
“retained or specially employed” expert.2 Id. Indeed, Scanlan’s
2 It is questionable whether an employee who does not regularly testify can ever be deemed to be a “retained or specially employed” expert for purposes of Rule 26(a)(2)(B). There are divergent views on the matter. See Marine Polymer Techs., Inc. v. HenCon, Inc., No. 06-cv-100-JD, 2010 WL 1292303, at *1 (D.N.H. Mar. 30, 2010) (“In this district, the report
3 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.
To be 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.
Nevertheless, 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
requirement under Rule 26(a)(2)(B) is applied only to experts who are specially retained or who provide expert testimony as a regular requirement of their employment.”); Greenhaw v. City of Cedar Rapids, Iowa, 255 F.R.D. 484, 487 (N.D. Iowa Feb. 17, 2009) (collecting cases). Given the court’s disposition, the court need not address the issue.
4 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)).
Accordingly, to the extent Scanlan’s expected testimony can
be considered expert opinion, defendants were only required to
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Saucedo, et al.
v. Civil No. 17-cv-183-LM Opinion No. 2018 DNH 041 William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.
O R D E R
Plaintiffs 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.
As an 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.1
1 For example, plaintiffs suggest that Scanlan may not be qualified to opine on certain topics and that his dual role as an expert and party representative may lead to certain problems. “Under 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. 26(a)(2)(C)(i)-(ii).
Thus, 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
2 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 requirements. Id.
In this 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).
Nor does Scanlan appear to come within the scope of a
“retained or specially employed” expert.2 Id. Indeed, Scanlan’s
2 It is questionable whether an employee who does not regularly testify can ever be deemed to be a “retained or specially employed” expert for purposes of Rule 26(a)(2)(B). There are divergent views on the matter. See Marine Polymer Techs., Inc. v. HenCon, Inc., No. 06-cv-100-JD, 2010 WL 1292303, at *1 (D.N.H. Mar. 30, 2010) (“In this district, the report
3 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.
To be 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.
Nevertheless, 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
requirement under Rule 26(a)(2)(B) is applied only to experts who are specially retained or who provide expert testimony as a regular requirement of their employment.”); Greenhaw v. City of Cedar Rapids, Iowa, 255 F.R.D. 484, 487 (N.D. Iowa Feb. 17, 2009) (collecting cases). Given the court’s disposition, the court need not address the issue.
4 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)).
Accordingly, 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
5 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 address”).
The 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
6 which Scanlan intends to rely.3 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 on
defendants.
CONCLUSION
For the reasons stated herein, plaintiffs’ motion (doc. no.
44) is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
March 3, 2018
cc: Counsel of Record
3Plaintiffs filed no response regarding the adequacy of these new supplemental disclosures.