In U.S. Commodity Futures Trading Commission v. Newell, 301 F.R.D. 348 (N.D. Ill. 2014) (No. 12-6763), the court held that the CFTC generally could not discover attorney-expert communications, unless they fell into the narrow exceptions provided by FRCP 26(b)(4)(C), and could not discover drafts of expert reports. The CFTC propounded broad requests for production of all communications between defendants and their experts. Defendants turned over some drafts and notes related to the experts’ reports, including two draft reports and emails between defense counsel and one of the experts. During their depositions, the CFTC asked the experts about defense counsel’s contributions to their reports, and the experts testified that they exchanged drafts with counsel and accepted counsel’s recommended changes. The CFTC then moved to compel production of all drafts, and all communications. FRCP 26(b)(4)(B) and (C), effective beginning in 2010, provide that draft reports and most attorney-expert communications will be treated as protected work product. The rule includes three exceptions to the treatment of such communications, including allowing discovery “to the extent that the communications . . . (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed[.]” The CFTC argued that defendants could not invoke the rule because counsel “commandeered” the drafting of the expert reports, and because the communications included facts or data that the experts considered. The court denied the motion to compel. First, the 2010 amendments were adopted to prevent the inquiry requested by the government. The CFTC’s approach would require an analysis of the degree of counsel’s involvement in the drafting of the reports, which would necessarily require production of all of the drafts of the report for comparison, as well as production of all or virtually all attorney-expert communications. The court held that this is exactly the type of discovery that the 2010 amendments were intended to preclude. The court also explained that Rule 26(b)(4)(C) only requires disclosure of those parts of attorney-expert communications covered by the exceptions, and that the advisory committee comments make it clear that other portions of the communications remain protected from discovery. The court directed defendants to review specific documents that had been withheld and to produce “any portions” that contained materials covered by the rule’s exceptions.