Until recently, under the liberal discovery rules applicable in U.S. federal courts, draft reports from testifying experts had to be disclosed. Indeed, the general rule followed in federal court for the past several years had been that all communications with the retained trial expert, as well as all of the expert’s draft opinions, were subject to disclosure to the opposition. That rule created various problems and led to contorted situations in which a litigator might hire a consulting expert with whom confidential communications could be had, while engaging a separate expert to provide trial testimony with whom written communications would have to be kept to a minimum.
Recognizing the difficulties inherent in the old rule, the U.S. Supreme Court has modified Rule 26 of the Federal Rules of Civil Procedure to provide that most communications with a retained trial expert are now to be considered protected by the attorney work product doctrine. The revised rule, effective December 1, 2010, protects from disclosure draft Get to Know Your Expert (continued from page 11) opinions, as well as a lawyer’s communications with the trial expert, with only narrow exceptions for communications relating to the expert’s compensation or the facts and data upon which the expert has relied. The revised rule also makes a number of other changes in respect of expert disclosures, which are not addressed here.
This development brings the rules applicable in U.S. federal courts closer to those that apply in England and Wales, as well as in other countries where it is accepted that communications between attorneys and trial experts are not subject to disclosure.
The amendments to Rule 26 of the Federal Rules of Civil Procedure apply only in respect to matters pending in a U.S. federal court—not to actions in U.S. state courts. Parties to state court litigation must therefore look to state rules of procedure to determine the extent to which draft opinions or communications with experts will be subject to disclosure.