Opinion
No. 96 C 1122
January 3, 2003
MEMORANDUM OPINION AND ORDER
Defendant seeks a variety of information in conjunction with plaintiff's experts' reports. It contends that plaintiff did not provide the written reports required by Fed.R.CIV.P. 26(a)(2), and that it has never received in itch information to which it is entitled. On August 2, 2002, Magistrate Judge Geraldine Soat Brown discussed with the parties, item-by-item, the material that the City believes plaintiff must produce. Plaintiff then represented that its filings of July 16, 2002 — reports and exhibits — were its Rule 26(a)(2) submissions. Judge Brown ruled that plaintiff had to produce some of the items but not others. Defendant objects to her failure to compel plaintiff to produce some of the other material We overrule the objections, except to the extent that the following would require the production of additional documents.
We do not have the July 16, 2002 submissions before us and cannot comment on whether or not they conformed to the rule. Apparently they did not In all respects since Judge Brown ordered additional production and plaintiff agreed to provide that material But the claimed deficiencies were discussed at great length on August 2, 2002, Judge Brown had the primary responsibility of guiding discovery and she ruled. We pick up the matter at that point to determine whether she was clearly erroneous in not requiring the production of some items. What comes through on the briefing is a fundamental disagreement between the parties
regarding the scope of a party's responsibility to produce underlying data respecting matters considered by an expert. That disagreement may well be influenced by the City's reaction to the rulings respecting Dr. Bates — a kind of what-is-sauce-for-the-goose-is-sauce-for-the-gander contention. But there is a major distinction. Perhaps we can best illustrate it by comparison to medical studies.
A medical researcher performs a series of medical experiments, collecting and recording considerable data. She then analyzes that data, with the assistance of her review of relevant technical literature from the professional journals. All of the materials she relied upon must be listed and, to the extent they are not readily available, produced. That includes all the material she developed. It also includes the listing of the technical literature upon which she relied and the relevant technical literature she considered but rejected as not applicable for one reason or another. She is not required to produce the underlying data from studies by others unless she possessed It and considered it. Experts are entitled to and do consider a variety of Information, and their analysis might be flawed because they relied upon studies with flawed methodology or reasoning, but that is stuff for cross examination. or perhaps they should have considered other studies and did not. But they generally do not possess the underlying data in someone else's study and do not consider it. Accordingly, they cannot and do not need to produce It. Thus, for example here, defendant has no obligation to produce raw census data never accessible to or considered by Dr. Bates, but plaintiff is entitled to access, if possible, to the data he considered.
How does the application of that model here affect Judge Brown's rulings. We are not completely sure. Exhibit F to plaintiff's September 9, 2002, response to the City's objections, would appear to provide the information sought by the City with respect to Dr. Lunn, although we are uncertain about any list from Prof. LaNoue of things considered. Defendant's September 18, 2002 reply indicates less of a concern respecting production relating to him. With respect to both, however, defendant appears to seek underlying data from technical literature that was considered, even though the underlying data was never in the possession of the expert and was not considered. That It is not entitled to require.