In a case which involved an issue of valuing property rather than insurance bad faith, a Federal Court applied law applicable to all experts in Commonwealth Land Title Ins. Co. v. Sun Valley Credit, LLC, No. 1:13-CV-00113-EJL, 2015 WL 807055 (D. Idaho Feb. 26, 2015).
In that case, Commonwealth identified one Janoush as an expert witness who would testify to the issue of appraisal. Commonwealth produced Mr. Janoush’s expert report accordingly. “By doing so, Commonwealth gave up the protections of Rule 26(b)(4)(D).” Commonwealth Land Title Ins. Co. v. Sun Valley Credit, LLC, No. 1:13-CV-00113-EJL, 2015 WL 807055, *10 (D. Idaho Feb. 26, 2015).
Federal Rule of Civil Procedure 26(b)(4)(D) “essentially creates a non-testifying expert privilege or safe harbor allowing a party the right to keep ‘facts known or opinions held’ by its non-testifying expert secret, i.e. protected from discovery, similar to the work product doctrine.” Commonwealth Land Title Ins. Co. v. Sun Valley Credit, LLC, No. 1:13-CV-00113-EJL, 2015 WL 807055, *9 (D. Idaho Feb. 26, 2015). Commonwealth attempted to sail into this safe harbor after Mr. Janoush’s report had already left the pier, so to speak, by thereafter withdrawing Mr. Janoush as a testifying expert. This tack did not succeed.
The Commonwealth Court treated Commonwealth’s release of Mr. Janoush’s report as a waiver of whatever “privilege” or “safe harbor” is afforded by Rule 26(b)(4)(D). “Thus, the Court finds Rule 26(b)(4)(D) does not preclude Credit from calling Mr. Janoush at trial.” Commonwealth Land Title Ins. Co. v. Sun Valley Credit, LLC, No. 1:13-CV-00113-EJL, 2015 WL 807055, *10 (D. Idaho Feb. 26, 2015).
In announcing this holding, the Commonwealth Court did not mention that Commonwealth had previously identified Mr. Janoush as an expert likely to testify at trial. The only fact that was important to this holding was that Commonwealth knowingly and voluntarily produced Mr. Janoush’s report containing his opinions.
The central holding of this case is that the act of producing an expert witness’s report continuing the expert’s opinions is a waiver where the retaining party “knowingly and voluntarily discloses the non-testifying expert’s opinions.” This waiver can allow the opposing party to discover facts known or opinions held by the non-testifying expert, or as in this case, allow the opposing party to call the expert at trial in its own case. Commonwealth Land Title Ins. Co. v. Sun Valley Credit, LLC, No. 1:13-CV-00113-EJL, 2015 WL 807055, *10 (D. Idaho Feb. 26, 2015).
This holding has application to all Federal cases in which an expert’s report is voluntarily and knowingly produced, including in insurance bad faith cases.
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