A major revision to the federal rules governing expert witness reports is on track to take effect in December of 2010. Many lawyers and virtually all experts alike agree that the changes are long overdue. No longer would Rule 26 of the Federal Rules of Civil Procedure allow full discovery of draft expert reports and require broad disclosure of any communications between an expert and trial counsel, as has been the case ever since the rule's revision in 1993.
Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them.
The United States Supreme Court has submitted amendments to the Federal Rules of Civil Procedure to Congress, specifically including amendments to the expert disclosure requirements of Rule 26. Within these amendments, which will become effective on December 1, 2010 absent contrary Congressional action, the Court proposes extending attorney work product protection to expert report drafts. This should come as some relief to any attorney who must routinely engage with experts, including defense counsel for healthcare providers.
The Rules are currently silent as to any protection of communications between counsel and experts, including draft expert reports. During expert depositions, counsel conducting the deposition routinely request and examine the expert’s file contents, including communications the expert received from counsel who retained him or her. Often counsel is looking to find the elusive “draft” expert report that, when compared with the final report, may reflect input from counsel and potentially re-framing of the expert’s opinions.
The amended Rules preclude discovery of draft expert reports or communications between counsel and the expert. Amended Rule 26(b)(4)(B) specifically protects draft reports, regardless of the form. Amended Rule 26(b)(4)(C) protects communications between counsel and his or her expert. However, excluded from protection are those communications that relate to compensation of the expert, identify facts or data relied upon by the expert in reaching his or her opinions, or identify assumptions relied upon by the expert in reaching his or her opinions.
These amendments should provide some relief to legal counsel who routinely must engage experts, including counsel providing defense of healthcare providers. These changes should provide counsel more freedom to communicate with their experts without concern over discoverability of those communications.
John H. Martin, a past-president of the Defense Research Institute and a partner with Thompson & Knight in Dallas, wrote that the proposed rule will help reduce the cost of litigation.
He said that 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. 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. 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.
Given the broad support for the proposed rule by lawyers and experts alike, the changes to Rule 26 are virtually certain to take effect Dec. 1, 2010.
