Late Expert Witness Report Allowed Due to Use in Previous Case

Failing to file an expert witness report — even more than a month after the deadline — does not necessarily mean it will be excluded. A U.S. district court, using its full latitude, allowed the report because it was used in a previous court case.

In Richard N. Bell v. Michael Maloney, 1:16-cv-1193, S.D. Ind., retired attorney Richard Bell filed a copyright-infringement suit against forensic consultant Michael Maloney for using a photo of the Indianapolis skyline that Bell claims the copyright to.

Bell has sued approximately 175 people over the photo's use on websites, leading to accusations that he is a “copyright troll” and “digital extortionist.” Bell admits to demanding up to $1,500 payments and raising his demand if not paid promptly.

A photography and web development specialist, Jessica Wilch, working as a copyright infringement expert witness for Michael Maloney, had been involved in a previous case with Bell when he called her client demanding payment.

Wilch had selected the skyline photo for her client‘s website — after searching to find no copyright and no trademark information, including searching the photo's metadata. When she was told of the demand, she called Bell and asked for proof of copyright. He responded that the photo being on his website was proof enough.

In the ensuing case in 2014, Wilch acted as an expert witness for the defense and provided an expert report. Bell deposed Wilch for two days.

The evidence in the current case shows that the photo, which Bell took in 2000, first appeared on the website of the law firm he had worked for, Cohen & Malad P.C. (C&M). Bell obtained a copyright on the photo in 2011.

Maloney argues the copyright is not legitimate, and email evidence suggests that the photo was taken as a “work made for hire” by Bell's former law firm.

In July 2017, both Bell and Maloney filed motions for summary judgment. U.S. District Judge Richard Young denied both motions, finding that the evidence “suggests that Bell's decision to take the photo naturally followed from the discussions he had with (web developer) West (Publishing) personnel relating to development of the C&M website. This inference is also supported by the fact that Bell allowed C&M to use the photo for free.”

The deadline for filing expert witness reports in the case was Jan. 3, 2017, but Maloney never filed a report.

More than a month after the deadline, Bell filed a motion to exclude Wilch from testifying because no report had been filed. Maloney responded that Bell's motion was “grossly misleading” because Bell had deposed Wilch in the 2014 case and that the expert witness report from that case was applicable to the current case.

Justice Young agreed. He found Bell was not prejudiced by the failure to file the expert report by the deadline and that the 2014 report addressed the material issue of the case. Justice Young did order Maloney to file the expert report within 14 days, as it was required under Federal Rule of Civil Procedure 26(a)(2)(B).

The latitude justices have in accepting or rejecting expert witness reports should never be underestimated.