Saucedo v. Gardner

                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE



Mary Saucedo, et al.

    v.                                     Civil No. 17-cv-183-LM
                                           Opinion No. 

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, 

, at *4 (D. Mass. June 10, 2014).       For

purposes of expert reports, Rule 26 “divides expert witnesses

into two categories.”     

   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.,

, 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., 

, 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.,

 (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.”     

   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.”      

A treating physician is the prototypical expert who is exempt

from the stringent report requirements.     

     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    

   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, 

,
at *1 (D.N.H. Mar. 30, 2010) (“In this district, the report

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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, 

 (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,

.   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.     

   He is

thus not a retained expert, even if some of his ultimate

opinions relate to matters that arose from this litigation.     See

 (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., 

, 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, 

, at *2

(E.D. Mo. Dec. 15, 2015); Cooke v. Town of Colorado City, No. CV

10-08105, 

, 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., 

, 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.,

 (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.

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