Without providing detailed analysis, a federal court in Kentucky has decided that it was “just and practicable” to apply the amendments to Federal Rule of Civil Procedure 26 to litigation instituted before its December 1, 2010, effective date. Daugherty v. Am. Express Co., No. 08-48 (U.S. Dist. Ct., W.D. Ky., decided March 23, 2011). The issue arose in a dispute over insurance coverage; the plaintiff sought to withhold documents his attorney provided to an expert witness, which documents would only be protected from disclosure under the new version of Rule 26. Previously, Rule 26 required disclosure of all information provided to testifying experts. Now, the rule protects communications between a party’s attorney and a testifying expert except those relating to the expert’s compensation, identifying facts or data provided by counsel to the expert and considered by the expert in forming her opinion, as well as identifying assumptions provided by counsel and relied on by the expert in forming her opinion.
According to the court, while discovery was scheduled to close on the day the rule’s amendment took effect, it was extended to December 14. The insurance company issued a subpoena for the expert’s file, and plaintiff’s counsel accepted service on November 30. The expert’s deposition took place on December 9. The insurance company argued that because discovery of the file was sought before December 1 and the expert “is a key witness who offered new opinions despite having received no new information,” that “it would not be just and practicable to apply the amendments to this case.” The court disagreed, apparently finding that the circumstances of the case met the “just and practicable” standard set forth in the rule for its application to pending proceedings.