Subpoena Duces Tecum – Or Not?

Any expert that has had to respond to a subpoena duces tecum is likely to find this interesting.  I am not convinced as an expert that I would like to push this line, though.  Thoughts?

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In re Teleglobe Communications Corp., 2008
Category – Production, Spoliation
WL 3198875
( Bankr. D. Del. Aug. 7, 2008 )

Background:  Defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions is denied.  The court found that Rule 26(a)(2)(B) does not require the plaintiffs’ experts produce all drafts of their reports.

In addition, the court rejected the notion that draft reports fall into the category of data or information “considered” by the expert, which must be produced:

“The expert does not really ‘consider’ prior drafts in forming his opinion; the prior drafts are simply preliminary iterations of his opinion.  Rather than ‘consider’ his prior thoughts and statements, in editing the report the expert is considering the underlying data which forms the basis of the revisions.”

The court recognized that the Plaintiff’s experts did not destroy any documents, they simply made corrections to their reports and failed to save the drafts.

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