Intellectual Property Law

Revisions to Rule 26 Will Change How Parties Work with Expert Witnesses

By Michael Atkins

Unless Congress intervenes, new rules will go into effect Dec. 1 that will change how federal practitioners work with expert witnesses, including survey and other experts with whom trademark practitioners regularly work.

There are two main revisions.

The first requires parties to disclose a summary of the facts and opinions to be addressed by an expert witness who is not required to provide a report under Rule 26(a)(2)(B), including employee-experts and “hybrid” experts who have factual knowledge of the underlying dispute.

The other proposed revision broadens the attorney work-product doctrine to protect against the disclosure of attorney-expert communications, and the disclosure of drafts of expert reports and the proposed new disclosure required of employee and hybrid experts. However, the protection expressly does not extend to communications about the expert’s compensation, communications that identify facts or data the attorney provided and the expert considered in forming his or her opinions, and communications that identify assumptions the attorney provided and the expert relied on in forming his or her opinions.

The rules were first proposed in Sept. 2009 and were adopted by the Supreme Court in April 2010.

See the Civil Rules Advisory Committee Report for further detail and a redline of the proposed revisions.

Full post as published by Seattle Trademark Lawyer on June 21, 2010 (boomark / email).