A $2 million sanction in Macon exposes what happens when the divide between consultant and testifying expert collapses
Every expert witness who has ever been retained understands the format. On one side sits the non-testifying consultant, whose impressions and analysis are shielded from discovery under Rule 26(b)(4)(D) absent exceptional circumstances. On the other sits the testifying expert, who must disclose the facts or data considered in forming his opinions under Rule 26(a)(2)(B). Between them, counsel erects a wall.
In United States ex rel. Permenter v. eClinicalWorks, LLC, No. 5:18-cv-382 (M.D. Ga.), Chief Judge Marc T. Treadwell found that the wall was inherent fiction. “What is clear,” he wrote, “is that eCW went to extraordinary, and improper, lengths to maintain the fiction that the wall was solid, and thus it had no duty to disclose the ‘consulting work.’ The truth is that there was no wall at all.”
In September, Kirkland & Ellis and Skadden, Arps, Slate, Meagher & Flom consented to pay $2 million in sanctions. The money will not go to the relators. It will be paid into the registry of the court and disbursed to promote instruction on ethics and professionalism in Georgia’s accredited law schools — a disposition that says something about how the court understood the nature of the offence.
The Underlying Action
The qui tam suit was brought in 2018 by relators Alex Permenter, Chris Wheeler and Eric Rodighiero, who alleged that eClinicalWorks fraudulently obtained certification for its electronic health records software, in contravention of the False Claims Act. The certification standards at issue concerned authentication, access control, auditable events and tamper-resistance under 42 C.F.R. § 170.315 — technical matters squarely within the province of expert testimony, and the reason the case turned so heavily on what the experts had and had not seen.
The sanction that closed the case was not the first. The court had already sanctioned eCW on multiple occasions for withholding evidence, and had warned counsel in terms that left nothing to inference: claims of mistake and forgetfulness, even if credible, do not excuse discovery abuse.
The Expert Witness
Oren Wortman served as one of eCW’s key expert witnesses. At the material time he was Vice President of Cyber Security Services for North America at Sygnia, a global cyber readiness and incident response firm. He holds a bachelor’s degree in computer science and corporate communications from the City University of New York, and has held leadership and consulting positions at KPMG, Grant Thornton and RSA Security. He ran his own consulting practice in healthcare technology and served as chief technology officer of a New York publishing company. He is a frequent conference speaker and a familiar name to journalists covering the sector.
These are, by any ordinary measure, respectable credentials. That is precisely what makes the case instructive. The difficulty was never his expertise.
Where it Broke Down
Sygnia was engaged in two capacities. It supplied the litigation consultants, operating under the client code name “Eucalyptus,” and it employed Wortman, who was to testify. The consulting work confirmed some of the relators’ allegations and, in part, departed from the conclusions Wortman reached in his report. Contemporaneous reporting puts the figure at eleven of eighteen claims substantiated; the court’s own formulation was more restrained but no less damaging to the defence.
The court found that eCW assigned its consultant to work with Wortman, and that Wortman then incorporated the consultant’s work product into his expert report, claiming it as his own. Meanwhile counsel maintained to the relators and to the court that the consultant had been walled off, that Wortman had not relied on the consulting work, and that everything he relied upon had been produced.
Judge Treadwell described the scheme as “a widespread, long-running coverup of the fact that one of eCW’s key experts, Oren Wortman, overlapped with, was involved in, and relied upon the work of eCW’s litigation consultants.” He found by clear and convincing evidence that the misconduct, eCW’s own and that imputed from its lawyers, constituted subjective bad faith, and that eCW “repeatedly lied to the relators and the court for strategic gain.” He characterised the conduct of Kirkland partner Geoffrey Wyatt and Skadden partner Richard Bernardo as egregious.
In January 2026, addressing a renewed motion to exclude Wortman’s testimony, the court noted that eCW had withdrawn three paragraphs of his report. The case settled mid-trial.
Take Aways for Experts
The sanction fell on the firms and the client, not on the expert personally. But no expert reading this judgment should take much comfort from that distinction. Wortman’s name appears throughout a published opinion about a fraud on the court, and it will follow him into every future voir dire and every cross-examination on qualifications for the remainder of his career. Opposing counsel will find it in ten minutes.
Three Inherent Practical Points Follow.
Firstly, the source of every proposition in your report must be one you can identify and defend. If material reaches you from the retaining party’s consultants, you have relied upon it, whatever label counsel attaches to it, and Rule 26(a)(2)(B) is engaged.
Secondly, be alert to structural conflicts within your own organization. Where one firm supplies both the consultant and the testifying expert, the wall exists only if it is actually maintained — by separate teams, separate files, and an auditable record of what crossed between them.
Thirdly, when instructing counsel assures you that something need not be disclosed, that assurance protects counsel. Your obligations to the court are your own, and they are not delegable.
The wall is not a legal fiction to be asserted. It is an inherent operational discipline to be practised to uphold the very adversarial system itself.
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