A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.
The Abduction
Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.
Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.
Court Proceedings
The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.
The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”
Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.
Court Ruling
The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”
The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”
The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.
