On December 1, 2010, amendments to Rule 26 of the Federal Rule of Civil Procedure (“Rule 26”) will take effect. These amendments will restrict the discoverability of expert reports and communications between experts and trial counsel.
Since 1993, courts have interpreted Rule 26 to permit discovery of all communications between counsel and expert witnesses and all draft expert reports. This interpretation caused significant practical problems. Attorneys often went to extreme and costly lengths, including hiring multiple experts, to circumvent this rule and avoid creating a discoverable record. However, with the imposition of the new rules, these costly efforts are no longer necessary. The changes to Rule 26 should further the stated goals of streamlining pre-trial discovery and reducing the costs of litigation.
Changes to Rule 26
Importantly, the amendments to Rule 26 provide three significant changes. First, draft expert reports, previously fully discoverable by opposing counsel, now fall under the protection of the work-product doctrine that prevents most documents drafted in preparation of litigation from being discovered by opposing counsel. Rule 26(a) now expressly provides that the work-product doctrine protects “drafts of any report or disclosure required under Rule 26(a), regardless of the form in which the draft is recorded.” Practically, this change will enable attorneys to avoid going to extreme measures, like hiring multiple experts, in an effort to avoid creating material that is discoverable by opposing counsel. This change will likely reduce costs for parties engaged in litigation.
Second, the new rule limits the discoverability of communications between experts and counsel who retain them. Most communications between experts and counsel will now be protected under Rule 26. However, there are three significant exceptions: (1) communications pertaining to an expert’s compensation; (2) communications regarding facts or data that the attorney provided and the expert considered in forming his/her opinion; and (3) assumptions that the attorney provided and that the expert relied upon in forming his/her opinion. Importantly, not only does the new rule extend to communications between trial counsel and experts, but it also extends to communications between trial counsel and the expert’s employees.
Finally, the rule also changes the procedure for witnesses who, although not retained to do so, provide expert testimony at trial. Examples of this type of expert most commonly include treating physicians and government accident investigators. If these witnesses are not required to submit an expert report before trial, then the attorneys who utilize their testimony will ultimately be required to submit a disclosure to the court summarizing the facts and opinions to which the expert is expected to testify.
With these changes, Rule 26 should prevent many expert reports and communications from being discoverable. These changes may ultimately reduce costs of litigation associated with retaining experts.