By: David P. Miranda

As of December 1, 2010, subject to final Congressional approval, changes to the Federal Rules of Civil Procedure will go into effect to protect the disclosure of certain draft reports and communications prepared by expert witnesses used in litigation.  Under the new rules, only the final opinions of expert witnesses are required to be disclosed, along with the facts and data considered by the expert in forming those opinions.

Pursuant to the current Rule 26, which was last altered in 1993, full disclosure of all communications between an identified trial expert and trial counsel was required.  Under the new rule, draft reports and certain communications between expert and trial counsel are afforded protection under the “work-product” doctrine and are not subject to disclosure.  The Committee on Rules of Practice and Procedure in its notes regarding the changes recognize that courts read the current disclosure provisions to authorize discovery of all communications between counsel and expert witnesses, as well as all expert draft reports. The committee notes that the current rule has had undesirable affects — for example, attorneys may employ two sets of experts, one for the purposes of consultation and another to testify at trial, in order to avoid disclosure of certain communications.  Many attorneys feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication.  To address this concern, Rule 26 is amended to provide that disclosure include all “facts or data considered by the witness in forming” the opinions to be offered.  Thus, a party retaining an expert will no longer be required to disclose all attorney-expert communications and draft reports, but rather only the final opinions of the expert, as well as the facts and data “considered” by the expert in forming those opinions.

Certain other attorney-expert communications will also be provided with work-product protection by Rule 26(b).  Protected communications include communications between attorneys and the expert witness and its assistants, as well as any preliminary expert opinions.  The Rule does not protect communications between the expert and any other third party.  In addition, although document production will be protected by the work-product doctrine, such protection will not prevent inquiry of the expert at deposition regarding communications the expert had with anyone other than counsel about the opinions expressed, or about alternative analysis, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed.

The new work-product protections of Rule 26 are subject to three specific exceptions for which discovery is permitted.  First, discovery is permissible regarding compensation for retention of the expert.  Such discovery is not limited to the compensation for work forming the opinions expressed, but extends to all compensation for the study and testimony related to the action as well as other compensation for work done by a person or organization associated with the expert, or additional benefits to the expert such as further work or pay in the event of a successful result in the case.  The objective is to permit full inquiry to any potential sources of a bias, thus permitting broad discovery on issues related to compensation.

Second, discovery is permitted to identify facts or data that the parties’ attorneys provided to the expert, and that the expert considered in forming the opinions to be expressed.  Thus, even if the expert did not rely on the facts or data, they would be discoverable if the expert considered them in forming the opinion.

Finally, discovery is permitted to identify any assumptions that counsel provided to the expert that the expert relied upon in forming the opinions to be expressed.  This exception is limited to those assumptions that the expert actually did rely on in forming the opinions.

If a party seeks discovery outside the three exceptions, the party seeking such discovery has the burden of establishing that the party has substantial need for the discovery and can not obtain the substantial equivalent without undue hardship.  Even where a party can make this showing, the court must protect against disclosure of an attorney’s mental impressions, conclusions, or legal theories under Rule 26(b). However, this protection does not extend to the expert’s own development of the opinions to be presented, as those are subject to questioning at deposition or at trial.

The new rules are expected to facilitate greater communication between counsel and its experts, and reduce certain costs and expenses incurred in pursuing discovery of communications between counsel and experts in litigation.