It’s been a minute since our last installment of our “Check the Rules” series here on New York Commercial Division Practice, in which we occasionally highlight decisions from Commercial Division judges holding litigants and practitioners to account for noncompliance with either the Rules of the Commercial Division or the individual practice rules of the judges themselves. 

Way back in 2017, for example, we highlighted a decision from former Manhattan ComDiv Justice Eileen Bransten (may she rest in peace), striking an expert’s reply report under ComDiv Rule 13(c) because it included new data and opinions that were available to the expert when his initial report was submitted.  ComDiv Rule 13(c), noted Justice Bransten, was “promulgated so no party will be ‘sandbagged’ or surprised by another expert’s opinion,” not for an expert to “correct the deficiencies and omissions made in an initial expert report,” or for an expert to “say what he neglected to say in his opening report.”

Several years ago, we highlighted a decision from Manhattan ComDiv Justice Joel M. Cohen striking an expert rebuttal report under ComDiv Rule 13(c) because of its self-described “preliminary” conclusions and vague references to “disputed factual assertions” and “significant intercompany transactions,” which, according to Justice Cohen, constituted “insufficient notice of any opinions [he] propose[d] to offer or the bases for those opinions.”    

It turns out that ComDiv Rule 13(c) has played a prominent role in a few Manhattan court decisions this year as well.  But before we dive in those decisions, let’s remind ourselves of what Rule 13(c) actually says:

Unless otherwise stipulated or ordered by the court, expert disclosure must be accompanied by a written report ….  The report must contain:

(A) a complete statement of all opinions the witness will express and the basis and the reasons for them;

(B) the data or other information considered by the witness in forming the opinion(s);

(C) any exhibits that will be used to summarize or support the opinion(s);

(D) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(E) a list of all other cases at which the witness testified as an expert at trial or by deposition during the previous four years; and

(F) a statement of the compensation to be paid to the witness for the study and testimony in the case.

In January of this year, Manhattan ComDiv Justice Melissa A. Crane in Moghtaderi v Apis Capital Advisors, LLC granted the defendants’ motion in limine, precluding the plaintiff’s expert under ComDiv Rule 13(c) in a case involving a dispute over the amounts paid to the plaintiff under the parties’ operating agreement after he voluntarily withdrew from their investment-advisory firm. 

According to the decision, the plaintiff was particularly aggressive throughout the course of discovery, having “no trouble asking the court to award discovery throughout the course of this acrimonious litigation” and “no problem reaching out to the court for every trivial discovery dispute.”  Yet eight months after filing his Note of Issue and filing two post-NOI motions to compel, the plaintiff for the first time disclosed in his list of trial witnesses that he intended to call an expert. 

The defendants moved to preclude the plaintiff’s expert from testifying.  Citing the language in ComDiv Rule 13(c) that provides that “the note of issue and certificate of readiness may not be filed until the completion of expert disclosure,” and that “[e]xpert disclosure provided after these dates without good cause will be precluded,” the court had little problem granting the motion:

Never, during the midst of all this motion practice (or at any other point) did plaintiff reveal they intended to call an expert at trial,” the court stated.  Instead, plaintiff waited until the eve of trial.  This is prejudicial to defendants who have been diligently preparing for a trial without an expert for months.   

In May of this year, the First Department in Taxi Tours Inc. v Go N.Y. Tours Inc. unanimously affirmed a trial-court decision handed down by Manhattan ComDiv Justice Jennifer G. Schecter a year ago, which precluded under ComDiv Rule 3(c) the defendant’s expert report and testimony in a case involving allegations of deceptive trade practices and unfair competition between competing New York City tour-bus operators. 

In Taxi Tours, the defendant alleged that the plaintiff fabricated thousands of online customer posts positively reviewing its own services and negatively reviewing the plaintiff’s services.  The reviews themselves – which by the time the parties were engaged in expert disclosure were no longer available on the internet – were not produced in the course of discovery.  Instead, the defendant and its proffered expert relied on an internet consultant’s summary of the reviews. 

The plaintiff moved to preclude the expert’s report.  Citing ComDiv Rule 13(c), the court similarly had no difficulty in granting the relief requested:

[T]he court does not understand how [the defendant] intends to prove that [the plaintiff] posted the allegedly fake reviews and that they are deceptive … without actually introducing them into evidence.  [The defendant] did not disclose those reviews during discovery and now there is no way they will be able to introduce them at trial.  It cannot seek to avoid this evidentiary problem by effectively seeking to admit the reviews through testimony.  Nothing could possibly be more prejudicial than admitting core evidence that a [party] has not seen based only on testimony from an expert that did not even personally review it.

On appeal, the First Department agreed, holding that “[t]he review data had been gathered years earlier by a nonparty entity and [the defendant] should have known about its rule 13(c) obligation to supply that data while submitting the expert disclosure.”

Finally, just last month, Manhattan Supreme Court Justice David B. Cohen in Smartmatic USA Corp. v Fox Corp. vacated a decision rendered by a Judicial Hearing Officer who had been appointed to adjudicate on consent the parties’ discovery disputes under the ComDiv Rules (including ComDiv Rule 13[c]) in a case involving allegations by the plaintiff, an election-technology and software company, that defendant Fox News defamed and disparaged it by publicly stating or implying on broadcasts that its election technology was “rigged” to “steal” the 2020 Presidential election. 

After receiving a lengthy rebuttal report from Fox’s “journalism” expert, which referenced several deposition transcripts from a similar but separate defamation action against Fox venued in Delaware (for which the same expert also had submitted a report), the plaintiff demanded production of the transcripts and related exhibits.  Fox responded by amending the report to eliminate the references to the transcripts and submitting an affirmation from the expert stating that she “inadvertently” referenced the transcripts, which she had not considered in the preparation of her report. 

The plaintiff made a motion to compel before the JHO, who ultimately ruled in favor of Fox, finding that “it did not appear that [the expert] has read or reviewed the documents at issue here as they were not specifically mentioned in [the] report.” 

The plaintiff then made a motion to vacate before the court, which found for the plaintiff and effectively reversed the JHO for his failure to consider the issue under ComDiv Rule 13(c):

[The] JHO … erred by failing to discuss Commercial Division Rule 13, which governs the production of the documents here, and his focus on whether [the expert] explicitly mentioned the deponents’ names in her report was also erroneous as the Rule requires disclosure of anything provided to and reviewed by an expert, whether or not it is thereafter mentioned in an expert report. 

Citing relevant precedent, the court specifically noted that, in the context of expert disclosure, “[t]he term ‘considered’ has been interpreted to mean documents ‘provided to and reviewed by the expert.’”  And because it was undisputed that the expert had read, reviewed, and considered the transcripts in connection with her report in the Delaware action, reasoned the court, “there [w]as no basis for defendants to argue that she never read or reviewed the documents.”

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