What constitutes adequate disclosure for non-retained expert witnesses under Utah Rule 26? RJW Media Inc. v. Heath Explained

In RJW Media Inc. v. Heath, the Utah Court of Appeals addressed the adequacy of expert witness disclosures under Rule 26 of the Utah Rules of Civil Procedure, providing important guidance for practitioners on disclosure requirements for non-retained experts.

Background and Facts

Heath constructed a detached garage with an office above on his property in the Timbers Subdivision. RJW Media, a neighboring property owner, sued to enjoin the construction, claiming the structure violated subdivision CC&Rs that prohibited multiple residential structures per lot and required HOA approval of “complete plans.” The case turned on whether the structure was residential (requiring cooking facilities) and whether Heath properly disclosed his plans to the HOA. Heath designated Sean Lewis, a Summit County planner, as a non-retained expert witness, initially providing only generic disclosure language that Lewis might testify about “architectural, design, construction, or general building opinions.” Four days before trial, Heath supplemented the disclosure with specific details about Lewis’s expected testimony regarding county interpretation of residential structures.

Key Legal Issues

The court addressed two primary issues: (1) whether Heath’s initial disclosure of Lewis satisfied Rule 26(a)(4)(E) requirements for non-retained expert witnesses, and (2) whether Heath fulfilled his obligations under the CC&Rs by submitting plans to the HOA that were insufficient for a county building permit.

Court’s Analysis and Holding

The court held that Heath’s initial disclosure was insufficient under Rule 26(a)(4)(E), which requires “a written summary of the facts and opinions to which the witness is expected to testify.” The court emphasized that disclosures must provide more than “broad, conclusory statements” and must “fairly inform” the opposing party about expected testimony. However, the court found the error harmless because Lewis’s testimony was cumulative of other expert testimony from Upwall and Hoff regarding Summit County’s policies on residential structures. Regarding the CC&Rs issue, the court held that “complete plans” meant plans sufficient for the HOA to conduct its aesthetic and design review, not plans complete enough for a building permit.

Practice Implications

This decision clarifies that Rule 26 requires substantive disclosure of expected expert testimony, even for non-retained experts. Practitioners cannot rely on generic topic lists and should disclose specific facts and opinions they expect to elicit, even if the expert is uncooperative. The decision also demonstrates that procedural errors may not warrant reversal when the excluded evidence would have been cumulative of other admitted testimony.