On December 1, 2010, amendments to Rules 8(c), 26 and 56 of the Federal Rules of Civil Procedure will take effect. The most significant of these rule amendments, and the focus of this alert, is the revamping of Rule 26 with respect to disclosures related to expert witnesses.1 Rule 26 has now been changed to add a new Rule 26(a)(2)(C), which outlines a different and less extensive form of disclosures for experts who: (a) are not retained or specially employed to provide expert testimony; or (b) if the witness is an employee of a party, do not regularly give expert testimony. The new rule merely requires these expert witnesses to disclose the subject matter of their testimony and summarize the facts and opinions to which they will testify at trial. This change resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.
In addition to a new form of limited disclosure for certain experts, Rule 26 has been amended in three ways to expand work-product protections to cover draft expert reports, communications between attorneys and experts, and certain information considered by experts.
First, Rule 26(a)(2)(B)(ii) was amended so that only “facts or data considered by the witness” in forming the expert opinion are discoverable. Under the pre-December 2010 version of Rule 26, testifying experts were required to disclose data or “other information” they considered regardless of whether the information was relied upon in forming an opinion.
Second, Rule 26(b)(4)(B) was amended to protect draft expert reports from disclosure. Many courts interpreting the pre-December 2010 version of Rule 26 have read the language to authorize discovery of all draft reports and all expert communications.
Third, Rule 26(b)(4)(C) was amended so that all communications between counsel and testifying experts, regardless of the form, are protected from discovery except for communications related to: (1) compensation the expert received, (2) facts or data provided by the lawyer that the expert considered in forming opinions, and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion. The rule does not itself protect communications between counsel and other expert witnesses, such as those from whom disclosure is required under new Rule 26(a)(2)(C).
Although some opposed the amendments to Rule 26 on the basis that the changes would impede a litigant’s ability to attack an expert’s opinion, the Committee on Rules of Practice and Procedure of the Judicial Conference issued a report that found this opposition to be of little concern. The committee noted that the changes to Rule 26 are necessary to reduce the costs and burdens of expert discovery by eliminating wasteful practices that attorneys and experts undertake to avoid creating a discoverable expert record. These practices included retaining two experts (one to testify and one as a consultant to do the work and develop the opinion), imposing contrived record-keeping practices, and wasting valuable deposition time exploring every communication between a lawyer and expert and every change to an expert report. The committee found these artificial steps to deal with broad expert discovery added unnecessary costs and burdens on the discovery process and impeded the efficient and proper use of experts by plaintiffs and defense attorneys.
Based on information provided by plaintiff and defense attorneys in New Jersey, which already has in place a similar rule on expert discovery, the committee found that the amendments to Rule 26 will not impede an attorney’s ability to obtain information sufficient to learn about and attack an opposing expert’s opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In this regard, the committee noted that under amended Rule 26 parties are still free to explore the expert’s qualifications and what the expert considered, adopted, rejected, or failed to consider in forming the opinions to be expressed at trial. Moreover, since the work-product doctrine is not an absolute privilege, the committee noted that a party may be able to make a showing of need and hardship that would overcome the work-product protection afforded under the Rule 26 changes.
The amendments to Rule 26 are not retroactive and, therefore, absent an agreement, communications and draft reports prepared before December 1, 2010, may still be discoverable.