The extensive, mandatory requirements of Fed.R.Civ.P. 26(a)(2)(B) apply only to expert witnesses and do not apply to fact witnesses. As noted above, SFA filed an expert designation under Rule 26(a)(2) and noted that “Mr. Selbasti is employed by Plaintiff [SFA]. Mr. Selbasti's report, Curriculum Vitae, and a listing of the cases in which he has testified are attached to counsel's copy of this disclosure.”
Pursuant to Fed.R.Civ.P. 26(a)(2)(B), an employee of a party who regularly provides expert testimony is subject to that rule's disclosure requirements.
In its reply, UCB states that based on SFA's disclosure, it understood that Mr. Selbasti was “an ‘employee of the party’ and that his ‘duties as an employee of the party regularly involve giving expert testimony.’ ”
When SFA did not provide the complete Rule 26(a)(2)(B) disclosures for Mr. Selbasti, UCB objected to his designation as an expert. In response to that objection, SFA stated that Mr. Selbasti was an “employee of a related
company” not retained or specially employed to provide expert testimony; nor was Mr. Selbasti “regularly involved in giving expert testimony.”
Subsequent to this exchange, SFA has declared that Mr. Selbasti's employer, SFT, is a company wholly unrelated to SFA. Based on this new position, UCB claims that Mr. Selbasti qualifies as an expert who was “specially employed” or “retained” by SFA, thereby requiring Fed.R.Civ.P. 26(a)(2)(B) disclosures. Asserting that such disclosures are not required, SFA now
argues that Mr. Selbasti is a “fact witness” who will present expert testimony based upon his investigation of the alleged defects on behalf of SFT prior to this litigation, and, therefore, Fed.R.Civ.P. 26(a)(2)(B) does not apply.