Digital Forensics Expert's Deficient Report Excluded

Plaintiff Michael VanStory was hired as American Health Partners’ National Director, Sales and Marketing, and began working in that capacity on February 21, 2022. VanStory’s employment with American Health Partners was terminated after American Health Partners sold its home health and hospice entities to Addus Healthcare, Inc. (“Addus”), which resulted in the loss of other jobs, in addition to VanStory’s. Defendant vehemently denied that VanStory was singled out or discriminated against in any way.

AHP filed a motion to exclude the testimony and report authored by Avery Thompson, an expert witness retained by VanStory.

Digital Forensics Expert Witness

Avery Thompson is an experienced digital forensics consultant and former law enforcement supervisory detective with two decades of investigative experience, specializing in complex digital evidence analysis, criminal investigations, and strategic case review.

He is recognized by the Alaska Court System as an expert in digital forensics and drug distribution, with hands-on experience completing forensic extractions on more than 2,000 devices and supporting major felony cases, including homicides, sexual assaults, kidnappings, white-collar crimes, and large-scale narcotics investigations.

Want to know more about the challenges Avery Thompson has faced? Get the full details with our Challenge Study report.

Discussion by the Court

AHP argued that Thompson’s report and testimony should be excluded for multiple, independent reasons. First, AHP asserted that Thompson’s written report failed to disclose the information required by Rule 26(a)(2)(B) and therefore should be excluded under Rule 37(c). Second, AHP argued that exclusion is appropriate because Thompson’s “qualifications are woefully inadequate, his methodology is unreliable and incomplete, his opinions are unsupported by sufficient facts or data, and his report will serve only to mislead the jury and unfairly prejudice Defendants.”

A cursory review of Thompson’s written report reveals that VanStory failed to comply with nearly all of the expert disclosure requirements mandated by Rule 26(a)(2)(B). The written report does not include “a complete statement of all opinions the witness will express and the basis and reasons for them.” In fact, Thompson testified during his deposition that the views expressed in the six-page report and the basis for those views were “just kind of a summary” instead of a “line-by-line description.” Nor does the written report contain a “complete statement” of Thompson’s opinions and “the facts or data considered by” Thompson in forming his opinions: Thompson admitted that the list of documents identified in the report as the “Evidence Reviewed” cannot reflect the complete factual bases underpinning his opinions because those listed documents do not accurately reflect all of the documents he reviewed. Instead, the documents listed in the report reflect only those documents that Thompson “was directed to specifically” review by VanStory’s counsel. Other disclosure deficiencies abound, including Thompson’s failure to mention his qualifications or the compensation to be paid to him for this engagement.

VanStory argued that the Court should ignore these disclosure deficiencies and simply accept his “amended” report because additional disclosures were subsequently made in the amended report or disclosed during Thompson’s deposition. First, the Court will not consider the amended report because that report was authored after the deadline for expert discovery, the Motion to Exclude was filed, and after both Defendants filed their opening summary judgment motions. Second, independently, VanStory has not adequately explained to the Court why these late disclosures were either “substantially justified” or “harmless.” He failed to even address why the disclosures were not initially made in compliance with court-ordered deadlines. VanStory never sought an extension of the expert discovery deadline but instead created an entirely new expert report after this motion was filed. There is no excuse for the delay and disclosure deficiencies.

Lastly, the dispute over Thompson’s report is much ado about nothing. VanStory does not rely on Thompson’s report (or the amended report) in his Responses to either of the pending summary judgment motions in this case. Nor does he rely on it in either of his Responses to the Defendants’ statements of undisputed material facts, filed alongside their summary judgment motions.

Under these circumstances, the Court will exclude the report and testimony of Thompson under Rule 37(c)(1). Because the Court found that the report failed to comply with Rule 26(a), the Court need not consider the reliability of Thompson’s testimony.

Held

The Court granted the Defendant's motion to exclude the testimony of Avery Thompson.

Key Takeaway

The Court will not consider the testimony or report for summary judgment purposes or at trial, should one be necessary. The report is deficient in numerous respects, as detailed above. And the overall importance of Thompson’s testimony is questionable, given that VanStory does not even rely on Thompson’s report in his briefs in opposition to the defendants’ summary judgment motions

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