Readers will recall from our previous posts that amendments to the Federal Rules of Civil Procedure were in the works for some time. They finally took effect earlier this month. With regard to Rule 26, the amendments extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.
The prior 1993 amendments to Civil Rule 26 had been interpreted by some courts to allow discovery of all draft expert witness reports and all communications between counsel and testifying expert witnesses. The experience under those amendments revealed significant practical problems in the eyes of many litigators. The rule changes are generally seen as an improvement for trial lawyers. Experts and attorneys may now communicate more freely, such as by email, instead of engaging in time-consuming dances designed to avoid creating potentially discoverable communications. The amendment allows attorneys and experts to exchange draft reports for review and discussion without fear of the consequence of the production of such communications. It also eliminates attorney time spent trying to negotiate a stipulation with opposing parties in order to avoid disclosure of this type of information.
The rules still permit discovery of communications related to the experts’ compensation, any assumptions provided by counsel to the expert to rely on; and facts or data that counsel provided to the testifying expert. Time will tell if the courts interpret the latter two as being limited to disclosure of objective information the lawyer provided to the expert, and not the general conversations they had surrounding those facts or interpretations of those facts. One likely effect is that counsel will want experts, to the extent possible, to find facts and data for themselves in public sources.