United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO PRECLUDE DELVAN NEVILLE FROM TESTIFYING
MARK J. DINSMORE, Magistrate Judge.
This matter comes before the Court on Plaintiff's Motion to Preclude Delvan Neville from Testifying at Trial or on Summary Judgment. [Dkt. 236.] For the reasons set forth below, the Magistrate Judge recommends that the Court GRANT Plaintiff's Motion.
Malibu Media, LLC ("Plaintiff") filed suit against Michael Harrison ("Defendant") and others, alleging direct and contributory copyright infringement. [Dkt. 59 at 1.] Plaintiff alleges that Defendant downloaded a BitTorrent client on his computer and accessed torrent websites to upload and download Plaintiff's copyrighted files, including those related to Plaintiff's X-Art website. [ Id. at 4-5.]
On July 16, 2014, Defendant Harrison submitted his Rule 26 "disclosure of witnesses he may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705." [Dkt. 236-1 at 1.] He included Jason and Edwin Bosaw "as "Rule 26(a)(2)(B) Witnesses" and attached a written report prepared and signed by the Bosaws. [ See id. ] He also included Delvan Neville as a "Rule 26(a)(2)(C) Witness" and provided one paragraph stating that Neville may:
provide general testimony regarding matters relating to the operation and functionality of the BitTorrent protocol; data collection methods and results relating to infringements using the BitTorrent protocol; and, commentary on network communications and other files in connection with the collection of evidence purporting to show communications and transfers of files necessary to accomplish the infringements of the copyrighted works using the BitTorrent protocol.
[ Id. at 1-2.] Defendant provided no report to accompany the disclosure about Neville. [ See id. ] Two months later, on September 19, Plaintiff filed the current motion to exclude Neville's testimony. [Dkt. 236.] The Court referred to motion to the Magistrate judge to issue proposed findings and recommendations. [Dkt. 263.]
A party must disclose to the other parties the identity of any expert witness it may use to present evidence at trial. Fed.R.Civ.P. 26(a)(1). Rule 26 divides expert witnesses into two types: those who are "retained or specially employed to provide expert testimony in the case, " Fed.R.Civ.P. 26(a)(2)(B), and all other expert witnesses. Fed R. Civ. P. 26(a)(2)(C). When disclosing the identities of the former-those who are specially retained or employed-a party must provide "a written report-prepared and signed by the witness" that contains:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). In contrast, when disclosing the identities of other expert witnesses-those not specially retained or employed to give testimony-a party need only disclose: "i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C).
The parties in this case dispute whether Delvan Neville is a 26(a)(2)(B) expert witness-i.e., one specially retained to give testimony-or a 26(a)(2)(C) expert witness-i.e., one not so specially retained. Plaintiff contends Neville is a 26(a)(2)(B) witness because he "was not involved with the facts of the case prior to the lawsuit being initiated, " [Dkt. 236 at 1], and would "not be testifying to any personal knowledge of the facts derived from his involvement in the case." [ Id. at 3.] Instead, Plaintiff alleges that Neville has been "recruited" to provide expert testimony, such that 26(a)(2)(B) applies. [ Id .; see also Dkt. 252 at 1.] Defendant responds that Neville is a 26(a)(2)(C) witness, and asserts that 1) Neville would be testifying on the basis of his personal knowledge, and 2) nothing in the record suggests he was "sought for any purpose other than to testify as an expert based on his personal knowledge and observations." [Dkt. 249-1 at 5.]
"[T]here is little case law discussing how a court distinguishes an expert who falls under 26(a)(2)(B) from an expert who falls under 26(a)(2)(C)." Beane v. Util. Trailer Mfg. Co., No. 2:10 CV 781, 2013 WL 1344763, at *2 (W.D. La. Feb. 25, 2013). The First Circuit, however, has analyzed the issue, and has stated that "to give the phrase retained or specially employed' any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony." Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Thus, as an example, a "treating physician" is a 26(a)(2)(C) witness because he is a "percipient witness" who has firsthand knowledge of the events giving rise to the litigation; on the other hand, a physician recruited for the purpose of giving testimony-rather than treatment-is a 26(a)(2)(B) witness because he has no such firsthand involvement in the events giving rise to the ligation. Id. Put differently, the treating physician is a 26(a)(2)(C) witness because his opinion arises "from his ground-level involvement in the events giving rise to the ligation, " and not because of his "enlistment" as an expert. Id.
Numerous district courts have accepted this analysis of the distinction between Rule 26(a)(2)(B) and Rule 26(a)(2)(C) expert witnesses. See, e.g., Beane, 2013 WL 1344763, at *3 (collecting cases); see also Brainstorm Interactive, Inc. v. Sch. Specialty, Inc., No. 14-CV-50-WMC, 2014 WL 5817327, at *3 (W.D. Wis. Nov. 10, 2014) (citing Downey, 633 F.3d at 7) ("[T]he application of Rule 26(a)(2)(B) depends on the expert's relationship to the issues in the lawsuit and whether his or her relationship developed prior to the commencement of the lawsuit."); Call v. City of Riverside, No. 3:13-CV-133, 2014 WL 2048194, at *10 (S.D. Ohio May 19, 2014) (quoting Beane, 2013 WL 1344763 at * 3) ("This Court agrees with the statement that the distinction between a 26(a)(2)(B) expert and a 26(a)(2)(C) expert is that 26(a)(2)(C) experts' conclusions and opinions arise from firsthand knowledge of activities they were personally involved in before the commencement of the lawsuit.'"). This Court likewise finds the First Circuit's analysis persuasive and will ...