Plaintiff Kevin Strickland filed this lawsuit against the Kansas City, Missouri, Board of Police Commissioners and five Kansas City police officers for alleged unconstitutional conduct that resulted in his wrongful conviction.
On June 21, 2024, Plaintiff issued its police practices expert, Russell Fischer’s supplemental report. The supplemental report is 2.5 pages long, and the revisions are made based on three third-party deposition transcripts that Fischer states were not available to him at the time of his initial report dated April 5, 2024. The relevant deposition transcripts are those of Pete Edlund (deposed on April 3); Alfred Gordon (deposed on May 13); and Bridgett Gordon (deposed on May 13). Pete Edlund was a KCPD homicide detective who investigated the 1978 triple homicide. Alfred and Bridgett Gordon were both interviewed by the KCPD during the triple homicide investigation.
Defendants moved to strike the supplemental report, arguing it contained new opinions untimely disclosed in violation of Rule 26(e).
Law Enforcement Expert Witness
Russell Fischer retired as the Chief of the Criminal Investigations Division specifically in charge of all investigative matters relating to homicide, robbery, sex crimes, domestic crimes and related functions task force operations.
Discussion by the Court
The Court held that the parties’ pretrial disclosures under Rule 26(a)(3) were not yet due, so the issue was whether the Supplemental Report contained “entirely new opinions” as Defendants alleged or rather newly discovered information that merely “completed” the initial report. To begin with, Defendants failed to provide specific examples of how the Supplemental Report provided “entirely new opinions,” and the Court found none. Both reports opined on whether officers deviated from minimally acceptable police practices during the homicide investigation. The Supplemental Report merely considered Alfred and Bridgett Gordon and Pete Edlund’s version of events in opining on the same.
Defendants also took issue with the fact the Supplemental Report was disclosed after the discovery deadline passed and after Defendants’ deadline to depose Fischer. While the timing was not ideal, Plaintiff maintained two of the three deposition transcripts were not available until the day discovery closed, making it impossible to provide the Supplemental Report beforehand. Plaintiff also added that Defendants have never attempted to take Fischer’s deposition to date.
The Court denied the Defendants’ motion since finding supplementation will best serve the purposes of Rule 26.
To ensure Defendants were not disadvantaged in any way, the Court permitted Defendants to depose Fischer out of time.
Held
The Court denied the Defendants’ motion to strike as untimely and improper the supplemental report of Plaintiff’s expert witness, Russell Fischer.
Key Takeaway:
Rule 26(e)(1) provides that “a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure 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.”
However, Rule 26(e) does not provide a vehicle for parties to merely “revise or change its disclosures,” “to bolster an expert’s opinion,” or “to present entirely new theories.”
Case Details:
| Case Caption: | Strickland V. Kansas City, Missouri Board Of Police Commissioners Et Al |
| Docket Number: | 4:23cv313 |
| Court: | United States District Court, Missouri Western |
| Order Date: | July 19, 2024 |
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