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Blogging Experts and Federal Rule of Civil Procedure 26:

More on the law of blogging -- a reader asks whether under Rule 26 of the Federal Rules of Civil Procedure (emphasis added), experts have to disclose all the blog posts they've posted in their area of experties:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

My quick guess is that blog posts need not be disclosed, unless they are detailed enough to form part of the witness's "qualifications" (which is highly unlikely, though a post that's as detailed as a scholarly article might qualify). The requirement, after all, is not simply to disclose all publications, but to disclose "the qualifications of the witness, including a list of all publications."

Yet I'm no civil procedure expert, so I can't be positive. If you have actual knowledge about this legal question (and not just speculation about the text, or opinions on what the law should be), please do post about it in the comments. Again, though, please limit this to specific legal knowledge that you have on the subject. I don't mean to be a martinet about this, but that's the way comments on such posts can be really useful.

alkali (mail):
The requirement that a list of publications be disclosed well in advance of trial, like the requirement that compensation be disclosed, was added to ensure that "opposing parties have a reasonable opportunity to prepare for effective cross examination." See Advisory Committee Note to 1993 Amendments to FRCP 26, subd. (a), para. (2).

Blog posts are very likely a better source of impeachment material than formal publications, so I would say that they have to be disclosed (although a itemized list of posts is probably not necessary).
3.7.2005 6:02pm
Ugh (mail):
My knowledge is second hand, but we have this situation in a current case, where we got a detailed list of a Professor's publications. However, we know he posts a lot to a list-serv and he didn't include a list of those.

The litigators (some of whom are experts on the FRCP) didn't seem to think that such an omission was some sort of violation of the FRCP (although they were very interested in what he was saying in his posts).
3.7.2005 6:05pm
Peter Nordberg (www):
I know of no decisional law on point. But there is this much to say. First, in the context of expert reports, practitioners almost universally construe the scope of "publication" narrowly, with a special focus on books and articles in scholarly or proessional journals. Indeed, an expert who listed a weblog might well be seen (rightly or wrongly) as attempting to pad his or her vitae.

Second, the disclosure requirements of Rule 26(a)(2)(B) matter primarily by virtue of potential sanctions for nondisclosure under Rule 37(c)(1). Those vest enormous discretion in the district courts to excuse what may be technical violations. To be sanctioned at all, the omission must be other than "harmless," and must be "without substantial justification." Even then, the court has the power to impose other sanctions "in lieu of" preclusion. As a practical matter, it's doubtful that most courts would sanction the omission of internet-published material in draconian fashion, except perhaps in unusual circumstances (e.g., serious and substantial scholarly or professional work not published elsewhere).

After all, in the age of Google, how likely is it that an omission will surprise the adversary to its prejudice?
3.7.2005 7:33pm
SupremacyClaus (mail):
Question: Does the expert have to reveal all blogging and message board communication? Both are published worldwide, automatically copyrighted.

An expert on railroad tracks manufacturing by day. Uses real name in blogging of personal adventures in rail track manufacture.

Rabid Nazi-Commie-Taliban, out of his mind, hate spewin', child porn advocatin', user of only capital letters, by night. Uses a fictitious here.

Is disclosure needed for both forms of publication? During the depo on rail track making, do you ask for all aliases under oath? Wouldn't opposing counsel really like to know the fictitious names? What does the expert do? Take the 5th? What does opposing counsel then do?
3.7.2005 8:08pm
Bill Dyer (mail) (www):
Gosh, that's a high threshold for comments, and I'm not sure if mine meets it.

From time to time, as a trial lawyer, I'm obliged to designate myself or a colleague as an expert witness on attorneys' fees. Very, very rarely are such experts challenged on the basis of their expertise, and although they're sometimes cross-examined aggressively, it's usually on the basis of their factual assumptions rather than on the basis of their expertise.

The last few times I've designated an attorneys' fees expert, I've done so with a cross-reference to my or my colleagues' professional listings on firm websites. It's never occurred to me to list my own blog. I certainly "opine" there on attorneys' fees from time to time, but rarely if ever with the same degree of care or formality that I'd use in writing for a scholarly publication or preparing an opinion to render as a witness in court.

Mr. Nordberg's comment is very apt, though, and it, plus the original post, will at least prompt me to think about whether something I've blogged might be used to cross-examine me in court!
3.7.2005 8:10pm
Fritz Schranck (mail) (www):
The following link is to a short post I wrote in reaction to this interesting question, from the viewpoint of a practitioner:
http://www.sneakingsuspicions.com/a0227031205.htm#030705b

It's title is, "The difference between must and should can be very small."

/f
3.8.2005 6:32am
Scipio (mail) (www):
I am currently involved in some very expert-heavy toxic tort cases, both in Mississippi and federal courts. The issue has not even come up, and although a number of the experts are university professors who are quite active on listserv, those items are not included in publications lists or even asked about.
3.8.2005 11:19am
SupremacyClaus (mail):
Scip: One needs to ask for all internet pubs, including those under fictitious names, such as Scip. Publications on paper? Paper? What's that?

Once openly stated, this is an instantaneous standard of professional practice. If a lawyer were to lose a case for me, I would certainly second guess this omission in the lawyer malpractice suit that should follow any loss.

Have the expert read his messages, out loud, in court, from the teenie bopper love connection Board, displayed on the Powerpoint Big Screen, in real time from the original site. "Oh, Honey, you are just the bestest. Is there even a teensy chance we can ever meet in person?"

"For credibility, Your Worship. We agree, Mr. Love Bandit, here, should continue to testify about the long term studies on the pulmonary effects of mold. No problem, Your Worship. We just thought we should humanize and make him more familiar for the jury."
3.8.2005 3:08pm
Scipio (mail) (www):
SC- I confess I chuckled. Have you ever seen a successful legal malpractice case in Mississippi? That only happens if you abscond with client monies. Being a crappy trial lawyer apparently doesn't count.

The professors have indeed been providing copies of emails, however, as well as powerpoint presentations and various semi-published arcana. Just nothing blog-like.
3.8.2005 4:06pm
SupremacyClaus (mail):
Scip: The absence of recourse against lawyer deviation is probably true everywhere. If you want to have a lucrative niche to your lonesome self, testify against lawyers in malpractice. Be prepared for aggressive discovery, and some hostility from the Bar, as in personal destruction.

I need a colorful Southern expression for tight rigging.

"Those boys have it better than a frog, on a stump, in August, with a fly halfway down the gullet." I can't do it. Help me.
3.9.2005 8:57am