Revisions to Federal Rule of Civil Procedure 26 – New Untested Protections for Testifying Experts

On December 1, 2010, the latest version of the Federal Rules of Civil Procedure went into effect. As part of the new rules, significant changes were made to Rule 26 regarding the discovery of information from experts retained to provide testimony. As of Wednesday, witnesses who were not previously required to provide a written report must now provide a summary disclosure of their opinion. In addition, draft expert reports and some communications between expert witnesses and counsel will no longer be discoverable, and expert reports will now only need to contain information regarding “facts or data considered by the witness in forming” an opinion.

Of special interest are the last two changes to Rule 26. Specifically, Fed. R. Civ. P. 26(a)(2)(B)(ii)  will now limit expert reports to “facts or data” rather than having previously required the disclosure of “data or other information” considered by the witness. As explained in the notes of the Advisory Committee, the facts or data limitation is meant to keep these disclosures to those which are factual in nature and will now exclude the discovery of counsel’s theories or mental impressions.

Similarly, draft expert reports and communications between expert witnesses and counsel will no longer be discoverable. Rather, the Advisory Committee explained that Fed. R. Civ. P. 26(b)(4) will now provide work-product protection against the discovery of “draft reports and disclosures or attorney-expert communications.” However, there will be three exceptions to the protection of attorney-expert communications, namely, those involving an expert’s compensation; facts or data provided by the attorney to an expert that were used in forming the opinion; and any assumptions that counsel provided to the expert and were relied upon to form the opinion.

Because these amendments are new and their bounds untested, counsel and clients should remain careful when communicating with testifying experts in connection with a litigation.

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