Litigation

Significant changes to FRCP 26 will protect communications between counsel and testifying expert witnesses

By Steve Kennedy

Proposed amendments to Rule 26 of the Federal Rules of Civil Procedure will have a profound impact on the way attorneys and expert witnesses work with each other to prepare for expert testimony at trial.  The rule changes, which will take effect on December 1, 2010 unless Congress acts to prevent implementation, are intended to remove some of the discovery risks that have prevented open and frank discussions between counsel and expert witnesses and to make collaboration with experts more effective and cost-efficient.

In its current form, Rule 26(a)(2)(B) allows discovery of all ?data or other information considered by? the expert witness in forming his or her opinions.  Many courts interpret this language to require disclosure of all communications between counsel and testifying experts, including all draft reports prepared by the expert.  Predictably, this led many litigators to actively discourage testifying experts from preparing any draft reports or communicating with counsel in writing.  Moreover, this state of affairs created an incentive ?- at least for those litigants who could afford it ?- to hire an additional, non-testifying, consulting expert, whose documents and communications are generally protected from disclosure.

The proposed amendment to Rule 26(a)(2)(B) would no longer permit discovery of all data ?or other information? considered by the expert; instead, the disclosure requirement extends to ?the facts or data considered by the witness? in forming the opinions.  This change should allow attorneys and experts to communicate more openly, without the risk of exposing to discovery written materials that may be adverse to the client?s interests.
 
And under proposed Rules 26(b)(4)(B) and (C), respectively, work product protection is expressly extended to all drafts of expert reports in any form, and to communications between counsel and testifying experts who are required to submit reports under Rule 26(a)(2)(B).  There are, however, three rather common-sense exceptions to the new ?attorney-expert? privilege.  The exceptions are:  (1) communications relating to the expert?s compensation; (2) identification of facts or data that the attorney provided to the expert and that the expert considered in forming the opinions to be expressed; and (3) identification of any assumptions that the attorney provided to the expert and that the expert relied upon in forming the opinions to be expressed.

The proposed amendments should allow counsel on both sides to communicate openly with their experts, and enable experts to take notes and prepare draft reports, without fear of wide open disclosure or the gamesmanship required to prevent disclosure.  For further background, see the excerpts from the Report of the Judicial Conference Committee on Rules of Practice and Procedure.

Full post as published by Northwest Business Litigation Blog on November 22, 2010 (boomark / email).