This week, Judge Burke issued an interesting oral order on a discovery dispute about the admissibility of "new" expert opinions in rebuttal reports.
In the order, he sets forth a simple baseline test for what a party has to show to strike purportedly "new" expert opinions in a rebuttal report. To succeed in striking a "new" theory, a party must show at least:
(a) how they clearly disclosed that theory well before final . . . contentions were due . . . ; (b) how the same theory was thereafter found in their opening expert reports . . . ; and (c) how [the opposing party] never provided any substantive response to that theory until …