Rule 26 Met: Accounting Expert’s Report Provided the Correct Kind of Appendix
Posted on March 24, 2025 by Expert Witness Profiler
Ink 477, LLC and Grove Ink, LLC, operating the Miami restaurant and bar “Amal” and “Level 6,” are accused by former employee Jose Petersen of violating the Fair Labor Standards Act (FLSA). Petersen, who worked as waitstaff at Amal from June to September 2022 and then at Level 6 from May to September 2023, claims the companies failed to pay him proper overtime, withheld agreed-upon service charges, and illegally confiscated portions of his earned tips.
As mandated by the Court’s scheduling order, the Defendants submitted their expert disclosures on October 18, 2024, identifying Christopher Nadeau as a forensic accounting and valuation expert. Nadeau’s report, which included an appendix listing the documents he reviewed, was provided. However, the actual documents themselves were not attached.
A week later, on October 25, 2024, the Plaintiff filed a motion arguing that the Defendants’ disclosure was insufficient. The Plaintiff claimed that Nadeau’s report vaguely referenced the reviewed documents, making them difficult to locate within the Defendants’ existing document production. They asserted that Rule 26 of the Federal Rules of Civil Procedure does not require the opposing party to search for the data used by the expert. Consequently, the Plaintiff argued that the Defendants failed to comply with the scheduling order because Nadeau’s report did not include the “facts or data” he analyzed.
Prior to the Defendants’ response, the Court held a discovery hearing on November 4, where the Plaintiff demanded the “31 documents” Nadeau reviewed. The Court rejected this interpretation of Rule 26, stating that it does not require experts to attach all underlying documents to their reports. The Court subsequently issued a written order confirming that listing the reviewed documents in an appendix, as Nadeau did, is standard litigation practice.
Accounting Expert Witness
Christopher M. Nadeau, CPA, CMA, CVA, is a forensic accounting professional and valuation analyst with experience supporting litigation across a range of commercial disputes. His work primarily focuses on economic damages analysis and business valuation for various industries including automobile dealerships, manufacturing, restaurants, and real estate.
He specializes in calculations related to personal injury and wrongful termination cases.
Nadeau is a licensed Certified Public Accountant in the State of Massachusetts. He also holds credentials as a Certified Management Accountant (CMA) from the Institute of Management Accountants and as a Certified Valuation Analyst (CVA) from the National Association of Certified Valuators and Analysts.
Discussion by the Court
In their response to the Plaintiff’s motion, the Defendants cited the Court’s ruling, emphasizing that Rule 26(a)(2) only requires identification of the reviewed items, not their production. The Plaintiff, in their reply, countered by stating that the Defendants did not produce the relevant discovery documents until November 1, after the initial discovery deadline, the expert disclosure deadline, and the filing of their motion.
The Plaintiff’s central claim is that the Defendants’ expert disclosure was deficient because it lacked the underlying “facts or data” used by the expert. However, the Court maintained that Rule 26 did not mandate attaching all supporting documents to an expert report. While not required to provide all raw data, the Defendants did furnish a link to the documents listed in the expert’s appendix. Furthermore, the Plaintiff received this link well in advance of the discovery deadline and trial, ensuring sufficient notice of the expert’s opinions and supporting data. The Court ruled that Nadeau’s report provided the correct kind of appendix, and that was all he needed to do to satisfy Rule 26.
Held
The Court denied the Plaintiff’s motion to strike Defendants’ expert disclosures.
Key Takeaway:
While the language of Rule 26 could be construed to support the Plaintiff’s argument, the courts have consistently interpreted it otherwise. Rule 26 requires a statement of the data considered by the expert, but does not require the expert to include the data itself.
Case Details:
| Case Caption: | Petersen V. Ink 477, LLC Et Al |
| Docket Number: | 1:24cv20008 |
| Court Name: | United States District Court, Florida Southern |
| Order Date: | March 19, 2025 |
