Part 5 of our series on How to Be an Effective Expert Witness in Court.

In most cases a computer forensic expert is called upon to prepare a written report. If the expert is going to testify in federal court a written report is mandatory unless otherwise stipulated or ordered by the court. Rule 26 (2)(A) Fed. R. Civ. P., requires that witnesses intended to be used at trial who will present evidence under Federal Rule of Evidence 702, 703, or 705 (the specific rules that apply to expert testimony) be disclosed in the initial witness disclosure required under Rule 26(a)(1). Although the rule requires that the expert's identity be disclosed as part of the initial disclosures it is not uncommon for parties to agree to a different disclosure date as part of a pre-trial scheduling order. Sometimes even the disclosure of the expert's identity is pushed off into the future per the scheduling order.

Regardless of when the expert is identified, Rule 26 contains specific requirements that pertain to expert reports. Rule 26 (2)(B) contains the following specific provisions for testifying experts:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

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

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

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

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

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