March 23, 2011
Amendments to Rule 26 of the Federal Rules of Civil Procedure (FRCP) are soon going into effect. They’ll extend attorney work-product protection to draft reports prepared by expert witnesses as well as to most communications between those experts and the counsel who retain them.
Question of interpretation
Currently, most courts interpret Rule 26 to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. According to a report by the Judicial Conference — the body of industry experts primarily responsible for recommending amendments to the FRCP — this interpretation has led to “artificial and wasteful discovery-avoidance practices.”
It’s common, for example, for parties to retain separate consulting and testifying experts and to take “tortuous steps to avoid having the [testifying] expert take any notes, make any record of preliminary analyses or opinions, or produce any draft report.” Not only are these practices inefficient, expensive and time-consuming, but they can also distract counsel from what really matters: the strengths and weaknesses of an expert’s opinion.
Free speech
By shielding draft reports and many attorney-expert communications from discovery, the newly amended Rule 26 encourages attorneys and experts to communicate freely and to keep written notes and records. At the same time, it facilitates discovery of information needed to establish the strengths and weaknesses of an expert’s opinion by providing three important exceptions to work-product protection.
The amended rule will permit discovery of communications between attorneys and testifying experts regarding:
- Compensation for the expert’s work,
- Attorney-provided facts or data the expert considered in forming an opinion, and
- Attorney-provided assumptions the expert relied on in forming an opinion.
The Judicial Conference report also noted that in some cases parties will be able to make a showing of need or hardship that overcomes work-product protection.
Another amendment to Rule 26 requires parties to disclose the subject matter and summarize the facts and opinions to be offered by nonretained expert witnesses who aren’t required to provide written reports. Examples include treating physicians, coroners and government accident investigators.
Coming soon to a court near you
Amended Rule 26 was approved by the U.S. Supreme Court in April. Unless Congress rejects the amendments (which is unlikely), they’ll take effect Dec. 1, 2010. In addition to applying in federal courts, the new rules will apply in many state courts that follow procedural rules based on the FRCP.
Issue 3 - Spring 2011