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Experts Ordered to Produce Draft Reports Exchanged with Other Experts

In this patent infringement action, the plaintiff, BRP, alleged three counts of patent infringement against Arctic Cat concerning snowmobile frame construction and snowmobile rider positioning. BRP alleged patent infringement by at least 91 Arctic Cat snowmobiles regarding two frame patents and infringement by at least 95 Arctic Cat snowmobiles regarding the seat position patent.

During expert discovery, Arctic Cat moved the district court for an order compelling BRP to produce any documents, notes or emails exchanged between BRP experts Larson and Raasch, particularly focused on draft expert reports exchanged between the two experts.

In his deposition, Larson testified that he reviewed Raasch’s expert report and she reviewed his expert report apparently as a quality assurance measure. During the questioning of Larson related to the reviewing of expert reports, Larson testified that the draft reports not only were reviewed, but that comments were also made on the draft reports and shared with the other expert.

After reviewing the deposition testimony, the district court found that “[i]t is clear from Larson testimony that he and Raasch both reviewed the comments of the other during the course of forming and completing their final expert reports.”

The district court then noted that “[w]hile the Pretrial Scheduling Order does provide that drafts of expert reports shall not generally be discoverable, (see Pretrial Scheduling Order, [Docket No. 267], as amended, at (g)(2)(F)]), 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. Fed. R. Civ. P. 26(a)(2)(B)(ii).”

As a result, the district court concluded that the comments on the draft reports had to be produced. “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, Arctic Cat is entitled to the comments on the drafts and the portions of the drafts (for context) to which those comments relate. See Id. ”

Accordingly, the district court granted Arctic Cat’s motion for comments and drafts exchanged between Larson and Raasch.

Bombardier Recreational Products, Inc., et al.,
Case No. 12-cv-2706 (ADM/LIB) (D. Minn. Apr. 19, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or