Litigation Support

Effective December 1, 2010, Rule 26 of the Federal Rules of Civil Procedure has some substantial changes, notably (this is the one that most often impacts us) that draft expert reports are now excluded from discovery except in limited circumstances. Fulbright & Jawoski issued a useful alert on this subject.

There are three significant changes:

1. Rule 26(a)(2)(B)(ii) is narrowed to require disclosure only of the ?facts or data? considered by the expert witness (deleting the requirement that ?other information? be disclosed);



2. Rule 26(a)(2)(C)?a new provision?requires that non-retained experts, e.g., treating physicians, disclose summary reports of their intended testimony; and,

3. Rules 26(b)(4)(B) and 26(b)(4)(C)?new provisions?extend work product protection to draft reports and attorney-expert communications, except communications about three specified topics.

The new provisions should reduce costs primarily by reducing the tactic of simultaneously engaging consulting and testifying experts, not to mention chasing down draft reports in the often forlorn hope of finding something useful to discredit the testifying expert or the expert's client. A good change.

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