Image via WikipediaOn December 1, 2010, regardless of the filing date, all cases in Federal Court are subject to a revision of the Rule 26 of the Federal Rules of Civil Procedure as it relates to expert witness reports. No longer will Rule 26 require full discovery of draft expert reports and broad disclosure of any communications between an expert and his attorney client.
Instead, those communications will are considered work-product. The revision of this rule will prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. However, this rule does not affect discovery of the expert's opinions and of the facts or data used to support them.
The rule was approved by the U.S. Judicial Conference in September 2009. The Supreme Court approved the change to the rule in April of 2010 and submitted it to Congress. By law, if Congress takes no action to reject, modify or defer the proposed rule, it takes effect on Dec. 1. John K. Rabiej, an attorney advisor on court rules to the Judicial Conference, confirmed publicly that Congress has taken no action and that the rule will in-fact take effect on Dec. 1.
The rule expressly provides that the work-product protection applies to "protect drafts of any report or disclosure required under Rule 26(a), regardless of the form in which the draft is recorded."
The rule also applies work-product protection to communications between experts and the counsel who retain them. The rule maintains three exceptions to this protection:
Communications pertaining to the expert's compensation
Facts or data that the attorney provided and the expert considered in forming opinions
Assumptions that the attorney provided and that the expert relied on
The Judicial Conference proposed the new rule in order to address problems created by the 1993 revisions to Rule 26. Courts interpreted the rule to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. That resulted in "significant practical problems," the conference said in its report to the Supreme Court.
"Lawyers and experts take elaborate steps to avoid creating any discoverable record and at the same time take elaborate steps to attempt to discover the other side’s drafts and communications," the report said.
"The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts – one for consultation, to do the work and develop the opinions, and one to provide the testimony – to avoid creating a discoverable record of the collaborative interaction with the experts."
The change to Rule 26 received broad support from trial lawyers and bar organizations, perceiving it as a long-overdue step towards reducing the cost and contentiousness of litigation. At hearings conducted by the Advisory Committee on Civil Rules on the changes to Rule 26 and Rule 56, some 90 witnesses presented testimony.
Amending the rule would enable litigants to avoid the kind of "artificial behavior" that is now all-too common, he suggested. No longer would lawyers and experts feel compelled to avoid written communications and no longer would well-funded litigants hire two sets of experts, one to consult in case development and the other to testify.
"The proposed amendments provide protection to attorney-expert communications that allows the attorney and the expert to communicate freely with each other without having to engage in time-consuming and wasteful measures to avoid the creation of a draft report," said John H. Martin, a past-president of the Defense Research Institute and a partner with Thompson & Knight in Dallas.
"This allows the attorney to learn about the scientific or technical aspects of the case from the expert so that legal arguments not based on sound scientific methodology can be discarded, and the issues to be presented at trial can be narrowed," Martin added. "At the same time, it allows the attorney to speak freely with the expert, many of whom are not fulltime professional expert witnesses, and to engage in an ethical preparation of the witness to present opinion testimony."
It appears that the new rule extends the work-product protection to not just the expert, but also to the expert's employees. The official committee note that accompanies the proposed rule explains that its protection is intended to include communications "between the party's attorney and assistants of the expert witnesses."