A $2 million sanction turned on the wall between a consultant and an expert.

The order

Reuters reported on September 4, 2026 that United States District Judge Marc T. Treadwell of the Middle District of Georgia had ordered two law firms, Kirkland & Ellis and Skadden, Arps, Slate, Meagher & Flom, to pay $2 million over their conduct in a False Claims Act case, with the money directed to promoting instruction in ethics and professionalism at Georgia's accredited law schools and payment due within ten business days. The Atlanta Journal-Constitution reported the same figure and described the judge's account of a long-running failure to produce unfavorable material. Reuters reported that the firms and the two partners involved did not respond to requests for comment.

That order is not yet publicly posted. The reasoning behind it is. On January 15, 2026, in United States ex rel. Permenter v. eClinicalWorks, LLC, No. 5:18-cv-382 (MTT), Judge Treadwell entered a fourteen-page order that opens by noting it was the third time he had sanctioned the defendant in that case for withholding evidence. The relators, three information-technology specialists who serviced medical practices in middle Georgia, alleged that the defendant, an electronic health records vendor, had improperly obtained federal certification for its software. For practicing lawyers, the interesting part of the January order has nothing to do with health records. It is about a structural arrangement that is common, permissible, and easy to get wrong.

What Rule 26(a) requires

The court described the governing law as straightforward and undisputed. Federal Rule of Civil Procedure 26(a)(2)(B) requires a retained expert's written report to contain "a complete statement of all opinions the witness will express," together with the basis and reasons for them, and to disclose "the facts or data considered by the witness" in forming those opinions. Rule 37(c)(1) then authorizes sanctions where a party fails to provide information required by Rule 26(a), unless the failure was substantially justified or is harmless. In the Eleventh Circuit, courts weighing that question look to the non-disclosing party's explanation, the importance of the withheld information, and the prejudice to the opposing party, under Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008).

None of that is new, and the order treats it as settled. What the order supplies is a worked example of how the disclosure obligation collides with a different and equally familiar practice: retaining consultants and testifying experts on the same technical subject. A consultant's work is generally shielded from discovery. A testifying expert's is not. Sophisticated litigants therefore keep the two apart, and the order describes that separation in the language it made famous within a day of being reported: prudent lawyers build a stout wall between the consultant and the expert.

The wall that was not there

Here, the court found, the same cybersecurity company employed both the consultant and the testifying expert, the consultant was assigned to work with the expert, and the expert then incorporated the consultant's work product into his own report. The consulting engagement had ended in May 2023. The expert was retained in February 2024 and produced his report that April. Four paragraphs of that report set out his methodology, describing testing tools used to examine the software. Three of those four paragraphs, the court found, said or adopted that the expert had directed or supervised the testing. Elsewhere the report attributed results to "my own independent testing." The testing had in fact been performed by the consultant roughly a year earlier, for the defendant's lawyers.

The dispute took about eighteen months to resolve because the position shifted each time it was pressed. Before the expert's August 2024 deposition, defense counsel assured the relators that everything the expert had considered had been produced and that the consulting personnel had been walled off. After a motion to exclude, the expert signed a declaration stating that, with one exception, he had not relied on the results of the tools named in his own methodology. At a June 2025 hearing, counsel maintained the expert was neither parroting the consultant nor relying on anything the consultant had done. The consultant was then deposed in July 2025 and testified that he had run the four tests identified as the expert's methodology, during the consulting phase, before the expert was ever retained.

Days later the defendant produced a 47-page consulting deck. The court reproduced pages from it beside paragraphs of the expert report in the order itself, showing the same screenshots and analysis appearing in both. The defendant withdrew three paragraphs of the report. The court's conclusion on the arrangement was six words long: "there was no wall at all."

What the court did, and did not do

The relators asked the court to exclude the expert's opinions altogether. The court declined, at that stage. Citing Taylor v. Mentor Worldwide LLC, 940 F.3d 582 (11th Cir. 2019) for the proposition that Rule 37 leaves a trial court discretion in how to respond to a disclosure failure, the order imposed what it called limited sanctions: the defendant was to produce the consulting team's work product immediately and to pay the relators' attorneys' fees and costs associated with the motions to exclude. The court added that the relators could request limiting, remedial, or punitive jury instructions, and could return to seek exclusion of specific opinions once they had reviewed the consulting material.

The order also puts the sequence in context. The first sanction concerned evidence about pressure applied to the outside monitor overseeing the defendant's compliance with an earlier agreement with the Department of Justice. The second concerned a failure to produce material from an internal application-security unit, where the court found the claim of an inadvertent mistake not credible. The January order closes on the enforcement problem this created, observing that the court had never before sanctioned a party three times for withholding evidence and that it was not sure what would ensure compliance going forward. The sanction reported this month is what followed.

What the rules still allow

Nothing in the order narrows the consulting-expert protection itself. Rule 26(b)(4)(D) continues to shield facts known and opinions held by an expert retained in anticipation of litigation but not expected to testify, absent exceptional circumstances or the limited exception for court-ordered examinations. Rule 26(b)(4)(C) continues to protect most communications between counsel and a testifying expert, subject to its own exceptions for compensation, for facts or data the attorney provided and the expert considered, and for assumptions the attorney supplied that the expert relied on. Using both roles on the same subject remains permissible.

Three consequences for practicing attorneys

What the January order and the sanction that followed it suggest, in practice: