*1 Before the Court is Defendant Michael Cheokas' “Motion for Sanctions Against Plaintiffs' Counsel.” For the reasons and findings set forth herein, Defendant's motion is GRANTED.

Plaintiff Mark D. Weissman is a purchaser and subsequent owner of the assets of Weatherly Aircraft Company (“WAC”), formerly known as GBECK, Inc. (Doc. 1.) Plaintiff Weissman purchased the assets at a foreclosure sale on September 29, 2008, from Remington Partners, who held a security interest in the assets pursuant to an agreement with WAC (“Security Agreement”). (Id.) Weissman is also the assignee of Remington under the Security Agreement pursuant to an assignment on December 29, 2007. (Id.) Weissman's ownership rights in the assets of WAC have been adjudicated and determined before this Court and as set forth in the consent judgment entered in North Am. for the Technological Advanced Aviation v. Weissman, No. 1:10-CV-37(WLS) (M.D. Ga. filed March 9, 2010). Weatherly Aviation Company, Inc. is the transferee of the assets.

On December 18, 2017, Plaintiffs filed an 82-page complaint with this Court alleging causes of action for fraud. (Doc. 1.) The first cause of action alleges that Defendant Cheokas fraudulently arranged a warehouse sale to sell assets owned by Plaintiff Weatherly Aircraft, wherein Defendant allegedly made numerous false statements regarding a rental agreement regarding the assets, the nature of a facility, and that Weatherly had received notice of the sale based on a default in payment of rent. (Id.) The second cause of action alleged that Defendant engaged in fraudulent representation of ownership of the Weatherly Aircraft company. (Id.) The third cause of action alleged conversion on the part of the Defendant regarding foreclosed assets of the Plaintiffs. (Id.) The fourth cause of action alleged that Defendant engaged in theft and misappropriation of trade secrets by unlawfully acquiring such secrets through confidential information and certificate data and then selling the information. (Id.) The fifth cause of action alleged that Defendant engaged in a civil conspiracy to deprive Plaintiff of the right to “unclouded title, possession and use” of the assets. (Id.) The sixth cause of action alleged tortious interference with contractual relations on the part of the Defendant. (Id.) Causes seven and eight alleged claims under both federal and state RICO for racketeering activity. (Id.) The ninth cause of action alleged wrongful foreclosure and breach of the self-storage statute. (Id.) The tenth cause of action alleged that Defendant engaged in computer fraud by unlawfully converting and access computer data in violation of the Computer Fraud and Abuse Act (“CFAA”). And finally, the eleventh cause of action requested attorney's fees and litigation expenses based on Defendant's bad faith. (Id.)

Previously, Plaintiffs have litigated two other cases against separate defendants roughly stemming from the same transactions and occurrences. The Court denied Plaintiffs' attempt to consolidate this case with one of those cases (1:15-cv-40) on August 15, 2018 but allowed some consolidation of discovery where cost-saving or efficient. (Doc. 21.) Defendant filed a Motion to Dismiss the complaint on January 22, 2018. (Doc. 11.) The Court granted-in-part and denied-in-part as to the motion, dismissing Plaintiffs' causes of action four for misappropriation of trade secrets, six for tortious interference, and nine for wrongful foreclosure and violating the self-storage statute. (Doc. 22.) In the same Order, the Court allowed Plaintiffs to amend some of their causes of action, to which Defendant filed a second Motion to Dismiss for on November 17, 2018. (Id.; Doc. 26.) Again, the Court granted-in-part and denied-in-part as to the second motion, dismissing Plaintiffs' claims for computer fraud under the CFAA. (Doc. 31.)

*2 The Court issued a Scheduling/Discovery Order on October 9, 2019. (Doc. 35.) Initially, discovery was to end May 6, 2020, and the case was scheduled for the trial term beginning October 5, 2020. (Id.) However, since the issuance of the Scheduling/Discovery Order, the parties have been afforded three extensions on discovery. (Docs. 37, 39, 55.) On August 8, 2020, the Court allowed discovery to be extended to September 28, 2020. (Doc. 55.) Defendant filed the instant motion for sanctions on September 4, 2020. (Doc. 56.) Subsequently, the Court issued an Order suspending all deadlines until the sanctions issue could be addressed. (Doc. 67.) On July 7, 2021, the Court held a hearing on the instant motion where both parties presented witness testimony and argument. (Doc. 82.) The Court permitted the parties to submit post-hearing briefing and issued an Order memorializing the hearing on July 12, 2021. (Doc. 84.) The Court now issues its ruling on the motion.

Federal Rule 26(a)(1)(A) requires that “a party must, without awaiting a discovery request” provide to opposing parties documents that the disclosing party “may use to support its claims or defenses” and must make available for copying “materials bearing on the nature and extent of injuries suffered.” Parties may obtain discovery on “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Further, a party “must supplement or correct” its prior disclosure or response “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). A party must also disclose the identity of witnesses the party plans to use at trial along with a written report prepared and signed by the witness where the witness is intended to serve as an expert. Fed. R. Civ. P. 26(a)(2)(B). The report must include the expert witness' opinion and must be prepared by the witness himself. Id.

Rule 26(a)(2)(B) makes clear on its face that an expert's report must be “prepared and signed by the witness....” Id. (emphasis added.) Attorneys may have some degree of involvement in a report's preparation, but that involvement is generally limited.

Fed. R. Civ. P. 26(a)(2)(B), advisory committee note (1993 amends). Attorneys are permitted to assist experts in the preparation of their reports so long as the expert witness is substantially engaged in the report's creation and preparation. Tindall v. H & S Homes, LLC, No. 5:10-CV-044 (CAR), 2012 WL 3241885, at *2, (M.D. Ga Aug. 7, 2012); see also Keystone Mfg. Co. Inc. v. Jaccard Corp., 394 F. Supp.2d 543, 568 (W.D.N.Y. 2005). As this Court has previously noted, “[t]hat is not to say that it is appropriate for counsel ‘to prepare the expert's opinion from whole cloth’ and then ‘ask the expert to sign it if he or she wishes to adopt it.’ That level of attorney influence and involvement would clearly exceed the level of assistance contemplated by Rule 26.” Tindall, 2012 WL 3241885, at *2 (citing Manning v. Crockett, No. 95 C 3117, 1999 WL 342715, at *3 (N.D. Ill. May 18, 1999). In other words, an attorney may assist an expert with the creation of a report prior to its completion, but an attorney may not draft a report on behalf of the expert or alter a report without the substantial involvement the expert. Id.

Defendant Cheokas argues that the expert report presently at issue does not pass muster under Rule 26 because it was altered by Plaintiff's counsel before its submission. Upon review of the available evidence, record, and testimony given at the hearing conducted on July 7, 2021 in conjunction with the standard above, the Court agrees.

*3 In his Response and at the hearing, Mr. Andersen conceded that the report of expert witness James Persinger was modified and adapted from its original format. Doc. 68 at 4-7. These modifications included conversion from a pdf to a word document, the changing of headings, changing of formatting, and importantly, the omission of a page of lease agreement critical to the case. (Docs. 56 at 10, 12, 15; 68 at 4-7; 90 at 2.) Though Mr. Persinger testified at the hearing that the overall substance of his initial report was reflected in the report at issue, at his August 2020 deposition Mr. Persinger specifically stated on the record that the report at issue had been “put together by someone” and that it appeared to have attachments missing. (Doc. 56 at 10.) Mr. Andersen attempts to mitigate the effect of this testimony through his arguments that the first, unaltered report was provided to Defendant's counsel in his client's document production and was available prior to Mr. Persinger's deposition. (Docs. 71 at 4; 89 at 3.) However, the Court does not find this justification persuasive.

The burden to submit a report substantially produced by an expert that a party plans to call at trial lies on the party using said witness. See supra; Fed. R. Civ. P. Rule 26(a)(2)(B). Thus, regardless of whether a copy was available to Defendant's counsel amid the 8,000 plus documents provided, the burden to produce a report compliant with Rule 26(a)(2)(B) was on Plaintiff and Mr. Andersen. Prior knowledge or other existing record evidence does not supplant Plaintiff's separate duty under the Federal Rules.

The Court finds that based on the given evidence and testimony, it is evident that Mr. Andersen altered Mr. Persinger's report without Mr. Persinger's knowledge or approval. The law is clear that an attorney may assist in the creation and even the editing of an expert report for the purposes of Rule 26(a)(2)(B), but it does not go so far as to allow for an attorney to wholly and independently alter a report in such a way that causes not only fundamental changes to the report but causes pages to be dropped. See Tindall, 2012 WL 3241885, at *2; Keystone Mfg. Co. Inc., 394 F. Supp.2d at 568. Thus, Mr. Andersen—and therefore Plaintiff—failed to satisfy the requirements of Rule 26(a).

Fed. R. Civ. P. 37(c)(1)(A)-(C). To determine whether a witness or his testimony should be excluded from use, the Court must consider: (1) the importance of the testimony; (2) the reason for the failure of proper disclosure on the part of the party seeking to use the witness or information; and (3) any prejudice to the opposing party if the witness or the information is permitted. Wilkening v. Veolia Es Evergreen Lanfilld, Inc., No. 7:10-CV-122 (HL), 2011 WL 4625718, at *2 (M.D. Ga. Oct. 3, 2011).

Mr. Andersen does not provide adequate justification for the report at issue to convince the Court that his actions were justified or harmless. In fact, little is offered in this vein aside from Mr. Andersen's contentions that his alterations of the report were mere “fine tuning” and the assertion that any errors in the report at issue do not provide a basis for sanctions. (Doc. 68.) The Court finds that this lack of justification alone satisfies an award of sanctions under Rule 37. In addition, the Court agrees with Counsel for Defendant Cheokas that Mr. Andersen's actions were harmful to Defendant's case and defense. (See Doc. 56 at 14-21.) Defendant's Counsel relied on the report at issue in their case preparations and were not aware that the report had been altered or was incomplete until Mr. Persinger's August 2020 deposition. (Id. at 16.) The report contained material exhibits to this case and any alteration or unapproved changes to the expert's report is critical. Mr. Andersen's actions clearly took time additional and unnecessary time and effort from Defendant and Counsel that would not have been needed had the report been compliant with Rule 26(a). Moreover, Defendant accrued additional and unnecessary costs due to the need to prepare and retain experts based on the issues with the report. The actions of Mr. Andersen clearly caused confusion and prejudice to Defendant and his counsel. Whether or not Mr. Andersen's actions were intended to cause harm, it is clear that the actions he took were knowingly and intentionally done. Thus, the Court determines that Mr. Andersen's actions were not harmless and are therefore sanctionable under Rule 37.

*4 The report is clearly vital to the case. In fact, the information contained in the unaltered report speaks to the cause of action itself. The Court cannot deny the report's importance, even when considering the lack of justification for Mr. Andersen's actions and any previous prejudice experienced by the Defendant. Therefore, the Court ultimately finds that the report should not be excluded. See Wilkening, 2011 WL 4625718, at *2. However, that does not mean that the Court allows Mr. Andersen's conduct to escape unaddressed.

The Court finds that Mr. Andersen's actions in altering the expert report without the concurrent involvement and approval of the expert and failure to satisfy Rule 26(a) were improper. Though the Court shall not exclude the report at issue or Mr. Persinger as a witness, the Court does sanction Mr. Donald R. Andersen pursuant to Rule 37(b)(2)(A). The Court issues this sanction because what was done was not insubstantial or insignificant. Therefore, Defendant's Motion for Sanctions is GRANTED.

Accordingly, the Motion for Sanctions Against Plaintiff's Counsel (Doc. 56) is GRANTED. Mr. Andersen is ORDERED to pay the cost and attorney's fees of Defendant Cheokas' associated with the preparation and deposition of the witness James R. Persinger. In addition, it is also ORDERED that Plaintiff shall make the witness James R. Persinger available for further deposition and shall cover the costs of said deposition. Defendant shall submit his reasonable costs and attorney's fees consistent with this Order no later than 21 days after entry of this Order, or no later than October 21, 2021. Mr. Andersen may file a response or objection to the amount of fees and costs sought twenty-one (21) days thereafter. The Court will allow discovery to continue and shall extend discovery in part by separate order.

SO ORDERED, this 30th day of September, 2021.