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Proposed Changes to Federal Rule of Civil Procedure 26

Since the Federal Rule of Civil Procedure 26 was last amended in 1993, it has required parties to submit expert reports for all testifying experts. Those amendments have been interpreted by some courts to allow discovery of all draft expert witness reports and all communications between counsel and testifying expert witnesses. In the view of many litigators, the experience under those changes revealed significant practical problems.

Allowing such broad discovery significantly expanded expert discovery; it also irrevocably led attorneys and experts to take counteractive measures. However the steps taken to avoid creating discoverable drafts or communications has predictably resulted in inefficient and costly litigation. According to Charles S. Fax in Litigation News, Rule 26, “has bedeviled lawyers in dealings with expert witnesses. However, proposed amendments promise to resolve the difficulties caused by the present rule.”

These proposed amendments, the first major revision in nearly two decades, are to take effect in December of this year. No longer would Rule 26 allow full discovery of draft expert reports and require broad disclosure of any communications between an expert and trial counsel. Instead, those communications would come under the protection of the work-product doctrine. The amendments specifically extend work-product protections to drafts of both expert reports and expert party disclosures under Rule 26, and to attorney-expert communications.

With the prohibition of discovery about who said what to whom—a matter of no interest to jurors—depositions would now be allowed to focus on the expert’s analysis of the case. What will still be allowed, however, would be full discovery of the expert’s opinions and of the facts or data used to support them.

Plaintiff and defense lawyers agree on the need to apply work-product protection to expert draft reports, and that the revisions are an important step towards reducing the cost and contentiousness of litigation. Interrogating an expert about his or her conversations with counsel and prior report drafts is regarded by many as an utter waste of time. No longer would attorneys and experts feel compelled to avoid written communications; and well-funded litigants would no longer hire two sets of experts—one to consult in case development and the other to testify.

Congress has until December 1, 2010 to override the change, and if that does not happen, it becomes law on that day.

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