Howard University v. Borders

Background

Larry Borders and Virginia Borders, who were defendants and counterclaim-plaintiffs, moved to compel Howard University, which was the plaintiff and counterclaim-defendant, to produce photocopies of approximately 50 pages from annual reports cited in the expert report of Russell Panczenko. They also sought other documents containing facts that Panczenko relied on in preparing his report. The motion was filed at Dkt. No. 34.

Howard University opposed the motion, arguing that the court had already decided the issue at the September 3, 2020 initial pretrial conference and in a September 4, 2020 order. Under that earlier order, the University had made the annual reports available for the Borders’ in-person inspection.

Court’s Analysis

The court said the University’s argument was incorrect. It explained that the earlier order addressed discovery requested under the Borders’ document-production request, at a stage when the Borders had to define the relevance and scope of the materials they sought.

The court instead applied Federal Rule of Civil Procedure 26(a)(2), which requires a party presenting a witness who will provide expert testimony to disclose the witness’s identity and a written report. The report must include the expert’s opinions and their bases, the facts or data considered, and exhibits used to summarize or support the opinions. The court stated that this disclosure requirement broadly covers material the expert considered from any source, including documents relied on by or provided to and reviewed by the expert.

Because Howard University intended to introduce Panczenko’s report and call him as an expert witness, the University—not the Borders—was responsible for producing the relevant documents. The court also found that the University had the ability to provide the materials by photocopy or electronic means, as it had done for Panczenko. It found no identified burden requiring the University to produce the materials rather than requiring the Borders to travel to the University, and noted that the report cited approximately 50 pages.

Ruling

Judge Liman granted the motion to compel at Dkt. No. 34. The court ordered Howard University to make the pages and other documents covered by the order available to the Borders by February 11, 2021. The opinion states that the materials could be provided by photocopy or other electronic means, consistent with how they had been made available to Panczenko.