New amendments to Federal Rule of Civil Procedure 26 (“Rule 26”) will extend attorney work-product protection to all drafts of expert reports. The protection also covers most attorney-expert communications.

The Committee on Rules of Practice and Procedure (“the Committee”) proposed amendments to Rule 26 in 2008. The US Supreme Court approved the amendments and barring any action by Congress, the amendments will take effect on 01 December 2010.  

Proposed Changes in Detail

The proposed amendments to Rule 26 apply to experts who are expected to give testimony at trial. Consultants remain insulated from discovery. New Rule 26(b)(4)(B) extends attorney work-product protection to drafts of expert reports. The new protection applies to any draft, regardless of form, whether written, electronic or otherwise. Thus, drafts of expert reports will be protected from disclosure in all federal cases as of 01 December.

Also protected are communications between the party’s attorney and the expert, whether written, electronic, oral or otherwise, with three exceptions: 1) communications regarding expert compensation, 2) communications identifying facts or data that the expert considered in forming his opinions and 3) communications identifying the assumptions that the expert relied upon in forming his opinions.

The second exception only allows discovery of communications “identifying” the facts or data. Further discussions about the potential relevance of those facts or data are protected. The third exception only allows discovery of those assumptions which the expert actually relies on in forming his opinion. More general attorney-expert discussions conveying mental impressions, theories or exploring possibilities based on hypothetical facts, are protected from disclosure.

The Current Rule 26

Under the current version of Rule 26 (amended in 1993), detailed expert reports must be produced for all witnesses expected to provide expert testimony at trial. Drafts of these expert reports are subject to discovery. To avoid the extra costs associated with discovery of these drafts, parties often stipulate to not produce any drafts of expert reports. Currently, most attorney-expert communications are also discoverable. This has led attorneys to adopt a guarded attitude with respect to their experts, counseling the expert not to take any notes or record any preliminary analyses, in an effort to have the expert create only a single, finished report. This restricted communication impedes the development of a sophisticated and thorough opinion, reducing the overall quality of expert testimony.

Practical Implications

It will be no longer necessary to enter into separate agreements not to produce drafts of expert reports. Communications with experts will no longer be limited, which will increase the quality of expert reports. The quality of expert testimony will increase by promoting substantive questioning rather than questions that focus on uncovering attorney influence. The American Bar Association and the US Department of Justice, among others, support the changes.

The new Rule 26 will take some time to affect behavior because of the discovery avoidance practices attorneys currently employ. Broad-based support for these changes, as well as positive practical experience in some states that have already adopted similar changes, suggest that more open communication with experts, and the elimination of unnecessary stipulations to avoid discovery of drafts, are all positive steps. Rule 26 is finally catching up with actual practice.