Exchange of Editorial Comments Among Experts Requires Production of Draft Expert Reports

The court granted defendant's motion to compel draft reports exchanged between plaintiff's experts. "It is clear from [one expert's] testimony that he and [another expert] both reviewed the comments of the other during the course of forming and completing their final expert reports. While the Pretrial Scheduling Order does provide that drafts of expert reports shall not generally be discoverable, the Federal Rules of Civil Procedure also provide that a party is entitled to all the facts and data considered by another party’s expert in forming that expert opinion. At issue here is not an unadulterated expert report draft copy. At issue here are three expert report drafts with editorial comments prepared by a different expert, which each issuing expert reviewed and considered before finalizing their respective expert report. As such, [defendant] is entitled to the comments on the drafts and the portions of the drafts (for context) to which those comments relate."

Bombardier Recreational Products, Inc. et al v. Arctic Cat, Inc. et al, 0-12-cv-02706 (MND April 19, 2016, Order) (Brisbois, M.J.)