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TOOL 05 / DISCLOSURE

Rule 26 Report Completeness Check

Fed. R. Civ. P. 26(a)(2)(B) requires a retained expert's written report to contain six things. They are quoted here in the rule's own words, each with the concrete checks that decide whether the report on your desk actually contains it — and with the professional-practice points kept separate from what the rule requires, because a report can satisfy the rule and still be a poor report.

REQUIREMENTS
6, quoted verbatim
CHECKS
10 on the rule
PRACTICE POINTS
8, counted separately
RULE
FRCP 26(a)(2)(B)
DATA
Nothing stored, nothing sent
COST
Free · no sign-up
IN SHORT

A retained expert’s report must contain all opinions with their basis and reasons, the facts or data considered, any exhibits, the witness’s qualifications with a ten-year publication list, a four-year list of cases in which the witness testified at trial or by deposition, and a statement of compensation — and it must be prepared and signed by the witness. Six items. The check below tests a report against each of them.

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.
Fed. R. Civ. P. 26(a)(2)(B)
0 OF 6 REQUIREMENTS SATISFIED·8 PRACTICE POINTS OPEN
  1. 26(a)(2)(B)(i)NOT YET CHECKEDAll opinions, with basis and reasons
    “The report must contain … a complete statement of all opinions the witness will express and the basis and reasons for them.”

    Every opinion the witness intends to give at trial, together with the reasoning that gets from the evidence to each one. “Complete” is the operative word: an opinion not in the report is an opinion the witness has not disclosed.

    WHAT USUALLY GOES WRONG

    A findings section that states conclusions without the intermediate steps — which artifact, parsed by which tool, produced which value, and why that value supports the conclusion rather than a competing one. The reasoning lives in the examiner's head and in their notes, and never reaches the report.

    WHAT IT EXPOSES

    An opinion outside the four corners of the report can be met with a motion to preclude that opinion at trial, whatever the merits of the underlying work.

  2. 26(a)(2)(B)(ii)NOT YET CHECKEDThe facts or data considered
    “The report must contain … the facts or data considered by the witness in forming them.”

    Everything the witness considered — not only what they relied on. The 2010 amendment narrowed the disclosure from “data or other information” to “facts or data,” and the committee note explains that the change was made to protect theories and mental impressions, not to shrink the factual disclosure.

    WHAT USUALLY GOES WRONG

    An evidence inventory that lists the images actually examined and omits the material that was collected and set aside, the sources that were requested and never produced, and the transcripts, declarations or attorney summaries the examiner read before forming a view.

    WHAT IT EXPOSES

    The gap between what was considered and what was disclosed is standard cross-examination territory and a routine subject of a motion to compel; it is also how a report acquires an undisclosed factual basis at trial.

  3. 26(a)(2)(B)(iii)NOT YET CHECKEDExhibits that summarise or support
    “The report must contain … any exhibits that will be used to summarize or support them.”

    The demonstratives and evidentiary exhibits the witness will use — timelines, artifact tables, extracted file listings, screen captures, hash schedules. Not a promise to prepare exhibits later.

    WHAT USUALLY GOES WRONG

    “Demonstratives to be prepared” in place of exhibits, or a table in the body of the report that is later replaced at trial by a differently-constructed version whose underlying query nobody disclosed.

    WHAT IT EXPOSES

    An exhibit not disclosed with the report can be excluded, and the version served is the version the other side gets to test.

  4. 26(a)(2)(B)(iv)NOT YET CHECKEDQualifications and 10-year publication list
    “The report must contain … the witness's qualifications, including a list of all publications authored in the previous 10 years.”

    Qualifications for the question actually being answered, plus every publication authored in the previous ten years — the publication list is a fixed ten-year window, not a selection of relevant highlights.

    WHAT USUALLY GOES WRONG

    A CV listing roles held and certifications acquired rather than examinations personally performed, and a publication list curated down to the flattering entries.

    WHAT IT EXPOSES

    An incomplete publication list is discoverable, easy to test, and damaging out of all proportion to the omission — it goes to candour rather than to competence.

  5. 26(a)(2)(B)(v)NOT YET CHECKEDFour-year testimony list
    “The report must contain … a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.”

    Every case in which the witness testified as an expert at trial or by deposition in the previous four years. Testified — so cases where a report was served but no testimony given are outside the clause.

    WHAT USUALLY GOES WRONG

    A list with captions and nothing else, or one that quietly omits the matters in which the testimony went badly. Case numbers and courts are what make the list usable, and a list that cannot be used to pull a docket is a list that has not really been given.

    WHAT IT EXPOSES

    Omissions are found by the other side rather than by you, and they are found in the four-year window they were already searching.

  6. 26(a)(2)(B)(vi)NOT YET CHECKEDStatement of compensation
    “The report must contain … a statement of the compensation to be paid for the study and testimony in the case.”

    What the witness is being paid for the work and the testimony in this case. A rate is the usual form; the clause asks about compensation in the case, not about a published rate card.

    WHAT USUALLY GOES WRONG

    A single hourly figure with no indication of what else is being billed — testimony and deposition time at a different rate, travel, the work of associates and technicians under the named expert's supervision.

    WHAT IT EXPOSES

    Compensation is cross-examination material in every matter it appears in, and an incomplete statement invites the questions it was meant to close.

THE READOUT

0 of 6requirements satisfied on the rule’s own terms

A clause with nothing answering it is a disclosure problem rather than a merits problem, and it is usually cheaper to fix than to argue about. Supplementation obligations under Rule 26(e) run for the life of the case, and a court's response to an incomplete disclosure turns on Rule 37(c)(1), which looks to whether the failure was substantially justified or harmless.

Outstanding: 6 clauses

  • 26(a)(2)(B)(i) — All opinions, with basis and reasons
    • Every opinion the witness will offer appears in the report, numbered or otherwise separately identifiable, rather than being left to be inferred from a narrative.
    • Each opinion is traceable to the specific evidence it rests on — this artifact, this file, this log entry — rather than to the examination as a whole.
    • The reasoning from evidence to opinion is stated, including why the evidence supports this conclusion rather than an available alternative.
  • 26(a)(2)(B)(ii) — The facts or data considered
    • Every item of evidence examined is identified individually — device, custodian, acquisition date, and an identifier that ties it to the custody record.
    • Material considered but not relied on is disclosed too, including anything provided by counsel that the witness read before forming an opinion.
  • 26(a)(2)(B)(iii) — Exhibits that summarise or support
    • The exhibits are attached or served with the report, not described as forthcoming.
  • 26(a)(2)(B)(iv) — Qualifications and 10-year publication list
    • The qualifications relate to the specific discipline the opinions require, not to digital forensics as a general field.
    • The publication list covers the full previous 10 years and states expressly that there are none if that is the case.
  • 26(a)(2)(B)(v) — Four-year testimony list
    • The list covers the full previous four years and identifies each matter well enough to locate the docket — caption, court, and case number.
  • 26(a)(2)(B)(vi) — Statement of compensation
    • The rates are stated for each category of work actually being billed, including deposition and trial testimony where those differ.

Practice points still open

None of these is required by Rule 26(a)(2)(B). They are the things that make a report defensible rather than merely compliant, and a report can be fully compliant with every one of them outstanding.

  • (i) The tool and version used at each step are recorded, so a competent examiner handed the same source material could re-run the work.
  • (ii) Evidence that was requested, expected, or would ordinarily exist and was not available to the examiner is identified as such, rather than passing unmentioned.
  • (iii) For any table, timeline or chart derived from data, the underlying source and the method of derivation are stated well enough to be reproduced.
  • (iv) Certifications are given with their current status and date, rather than listed as though a lapsed credential were a current one.
  • (v) The nature of the testimony is identified, at minimum trial or deposition, and the party retaining the witness is stated.
  • (v) Any prior ruling excluding or limiting this witness's testimony is disclosed, rather than left in a docket for the other side to find.
  • (vi) Work performed by anyone other than the named witness — associates, technicians, laboratory staff — is identified and its rate given.
  • (vi) The statement makes clear that no part of the compensation depends on the outcome of the matter or on the content of the opinion.

Which experts need a report at all

The report obligation attaches to retained experts and to employees who regularly give expert testimony. Everyone else discloses under 26(a)(2)(C), and the difference is not cosmetic.

A witness who was hired to form an opinion for the litigation provides a report. A witness who acquired their knowledge by living through the facts — the systems administrator who configured the retention policy, the incident responder who was on the call, the employee who found the file — discloses under 26(a)(2)(C) instead: the subject matter of the expected evidence and a summary of the facts and opinions, without a report.

In digital evidence matters that line is crossed more often than in most, because the same person can be both. An administrator who testifies about how the logging was configured is a fact witness; the same administrator explaining what a sequence of log entries means for the question in dispute has moved into opinion territory, and whether that required a report is an argument the other side will be happy to have.

Timing, and what displaces it

Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.
Fed. R. Civ. P. 26(a)(2)(D)

The default is almost always displaced by a scheduling order, and the scheduling order is the date to work from. What the default is good for is the rebuttal window: thirty days is not long to receive a report, have an examiner reproduce the work, and write a response, and the work that makes that window survivable — imaging, indexing, the evidence inventory — has to be under way before the opposing report arrives.

Drafts, and what counsel may say to an expert

The 2010 amendments settled a question that had produced a great deal of unproductive discovery. Drafts of any report or disclosure required under Rule 26(a)(2) are protected as trial-preparation material, regardless of the form in which the draft is recorded — which includes the email attaching a version and the tracked-changes copy.

Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Fed. R. Civ. P. 26(b)(4)(C)

Those three exceptions are where expert depositions in this area concentrate, and the second is the one that bites in digital forensics: material provided by counsel that the expert considered is disclosable, which is why requirement (ii) above asks about everything considered rather than everything relied on.

The six requirements, side by side

The same six the check tests, with the rule’s words and the failure each clause most often meets in a digital forensic report.

CLAUSEWHAT THE RULE REQUIRESHOW A FORENSIC REPORT USUALLY FAILS IT
(i) All opinions, with basis and reasons“a complete statement of all opinions the witness will express and the basis and reasons for them”A findings section that states conclusions without the intermediate steps — which artifact, parsed by which tool, produced which value, and why that value supports the conclusion rather than a competing one. The reasoning lives in the examiner's head and in their notes, and never reaches the report.
(ii) The facts or data considered“the facts or data considered by the witness in forming them”An evidence inventory that lists the images actually examined and omits the material that was collected and set aside, the sources that were requested and never produced, and the transcripts, declarations or attorney summaries the examiner read before forming a view.
(iii) Exhibits that summarise or support“any exhibits that will be used to summarize or support them”“Demonstratives to be prepared” in place of exhibits, or a table in the body of the report that is later replaced at trial by a differently-constructed version whose underlying query nobody disclosed.
(iv) Qualifications and 10-year publication list“the witness's qualifications, including a list of all publications authored in the previous 10 years”A CV listing roles held and certifications acquired rather than examinations personally performed, and a publication list curated down to the flattering entries.
(v) Four-year testimony list“a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition”A list with captions and nothing else, or one that quietly omits the matters in which the testimony went badly. Case numbers and courts are what make the list usable, and a list that cannot be used to pull a docket is a list that has not really been given.
(vi) Statement of compensation“a statement of the compensation to be paid for the study and testimony in the case”A single hourly figure with no indication of what else is being billed — testimony and deposition time at a different rate, travel, the work of associates and technicians under the named expert's supervision.
Rule text quoted from Fed. R. Civ. P. 26(a)(2)(B). The failure column is professional observation about reports in this discipline, not part of the rule.

What an omission actually costs

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1)

Preclusion is the rule’s stated consequence, and courts have a wide range of lesser responses available and use them regularly: permitting a supplement, ordering a further deposition at the disclosing party’s expense, or limiting particular opinions rather than striking a witness. The duty to supplement under Rule 26(e) runs for the life of the case, which means most omissions are problems to fix. They are simply much cheaper to fix before service than after a motion.

Completeness is also not reliability. A report can contain all six things and still rest on a method that will not survive Rule 702 — which is a different check, and the Daubert exposure check is where it lives. From the other direction, the vetting checklist asks a candidate for four of these six documents before retention, on the theory that material which does not exist in usable form at vetting will not exist in usable form ninety days before trial either.

Reading a report you have just received

  • Start with (v), the testimony list. It is the fastest of the six to check and the most productive. Captions with courts and case numbers let you pull dockets, and two transcripts of a hostile cross tell you more about the witness than the rest of the report will.
  • Then (ii), the facts or data considered. Compare it against what was produced in the matter. The gap between the evidence that exists and the evidence the examiner looked at is frequently the most important thing on the page, and it is the one an incomplete inventory conceals.
  • Then (i), reading only for the joins. Not for whether you agree with the conclusions — for whether the path from artifact to opinion is written down at all. An unstated join is the disclosure problem and, separately, the Rule 702(d) problem.
  • Leave the qualifications until last. They are the section everyone reads first and the section that predicts the least. A superb CV attached to a report with no stated methodology is a worse position than the reverse.

What this tool does not tell you

  • It tests disclosure, not reliability or accuracy. A report can satisfy all six clauses and be wrong. Nothing here looks at whether the examination was competent, whether the artifacts were interpreted correctly, or whether the opinion outruns the evidence.
  • It is the federal rule, and most litigation is not federal. State expert-disclosure regimes differ substantially — some require far less, some require interrogatory answers rather than a report, some have no ten-year publication list or four-year testimony list at all. A stipulation or a scheduling order displaces the default in federal court too.
  • “Complete” is a judgment this tool cannot make for you. Whether a statement of opinions is complete, or a summary of reasoning sufficient, is exactly the question parties litigate. The checks give you the questions to ask of the document; they do not answer them.
  • The practice points are not obligations. Tool versions, prior exclusions, an associate’s rate — these make a report defensible and none of them is required by 26(a)(2)(B). They are counted separately for that reason, and describing them as rule violations would be wrong.
  • It says nothing about the 26(a)(2)(C) disclosure. Non-retained expert disclosures have their own, much shorter requirements, and whether a particular witness needed a report at all is a question that precedes every check here.
  • It is not legal advice, and it does not decide whether to move. A finding here is an input to a decision counsel makes, informed by the forum, the schedule, and what the omission is actually worth.

Questions counsel ask

What must a Rule 26(a)(2)(B) expert report contain?

Six things: a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; any exhibits that will be used to summarize or support them; the witness's qualifications, including a list of all publications authored in the previous 10 years; 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 a statement of the compensation to be paid for the study and testimony in the case. The report must be prepared and signed by the witness.

Which experts have to provide a written report?

Only witnesses retained or specially employed to provide expert testimony, and employees whose duties regularly involve giving expert testimony. Everyone else who will give expert opinion — the treating physician, the IT administrator who will explain the logging configuration, the in-house engineer — falls under Rule 26(a)(2)(C), which requires a disclosure stating the subject matter of the expected evidence and a summary of the facts and opinions, but no report. The distinction is where a good deal of expert-disclosure litigation actually happens, because a witness who drifts from fact into retained-expert opinion has usually done so without the report that would have been required.

When are expert reports due?

Absent a stipulation or a court order, at least 90 days before the date set for trial or for the case to be ready for trial; a rebuttal disclosure intended solely to contradict or rebut evidence on the same subject matter is due within 30 days after the other party's disclosure. In practice a scheduling order almost always displaces both, and the scheduling order is the deadline that matters.

Are draft expert reports discoverable?

Since the 2010 amendments, drafts of any report or disclosure required under Rule 26(a)(2) are protected as trial-preparation material, regardless of the form in which the draft is recorded. Communications between the party's attorney and a report-providing expert are also protected, with three exceptions: communications relating to compensation, communications identifying facts or data the attorney provided that the expert considered, and communications identifying assumptions the attorney provided that the expert relied on. Those three exceptions are where expert depositions in this area concentrate.

What happens if a report is incomplete?

The operative provision is Rule 37(c)(1): a party that fails to provide information as required by Rule 26(a) or (e) may not use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Courts have a range of lesser responses available and use them frequently — permitting supplementation, ordering a further deposition at the disclosing party's cost, limiting particular opinions — so an omission is usually a problem to fix rather than a case-ending event. It is nonetheless considerably cheaper to fix before service.

Does a complete report mean an admissible one?

No, and the two questions are genuinely independent. Rule 26 governs disclosure — whether the other side has been told what the opinion is and what it rests on. Rule 702 governs admissibility — whether the opinion is the product of reliable principles and methods reliably applied. A meticulously complete report can rest on a method that will not survive a motion, and a thin report can describe work that is beyond reproach. This tool tests the first question only.
REPORTS THAT SURVIVE THE CHECK

A report is written to be tested by someone who wants it to fail. That means the six clauses are the floor, and the tool versions, hashes and stated limitations sit above them — disclosed in the report rather than produced under protest afterwards.

Bring the output above and it becomes the agenda for the call.

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Attorney advertising / expert services. This tool describes forensic practice and the procedural rules that govern expert evidence in general terms. It is not legal advice, it does not create an attorney–client or expert-engagement relationship, and it is not a substitute for checking the rules, standing orders, and case law of your own forum. Rule text is quoted from the Federal Rules of Civil Procedure; state disclosure regimes differ, and a stipulation or scheduling order displaces the federal defaults. Prior results do not guarantee a similar outcome.