On December 1, 2010, several changes to the Federal Rules of Civil Procedure became effective. While most of the changes were of a technical nature, the changes to the expert witness discovery provisions were truly needed.
Federal Rule of Civil Procedure 26 has been amended to expand work-product protections to cover draft expert reports, many communications between lawyers and expert witnesses, and certain information considered by expert witnesses.
Specifically, Rule 26(a)(2)(B)(ii) now limits discovery to “facts or data considered by the witness” in forming his or her expert opinion. Under the pre-December 2010 version of Rule 26, testifying experts were required to disclose data or “other information” they considered regardless of whether the information was relied upon in forming an opinion.
Most significant of all were the changes to Rule 26(b)(4)(B) and 26(b)(4)(C). Subsection (b)(4)(B) now protects draft expert reports from disclosure. Most courts interpreting the old Rule 26 read the rule as authorizing discovery of all draft reports and all expert communications.
The old rule resulted in a nightmare, and it didn’t make discovery any more streamlined. I suppose the idea behind the old model was the notion that lawyers were secretly authoring the reports of expert witnesses.
That idea always seemed ridiculous to me because if an expert witness’ opinion was truly authored by a lawyer, it would rapidly become apparent on cross examination. Moreover, there were already numerous safeguards in place to ensure that the expert’s opinion was really his or her opinion. For example, all experts are required to turn over a list of the cases in which they have testified in the last four years.
Personally, most of the time I would rather my opponent have an expert who is prepared to testify about his opinion, and who has fully and freely discussed the case with the lawyer who hired him.
The worst thing about the old system was that it gave lawyers who might already be inclined to gamesmanship lots and lots of fertile ground. I have heard numerous tales of expert depositions that focused more on whether the other party had been provided with all draft reports, emails, etc., than on the substance of what the expert said.
Subsection (b)(4)(C) now protects all communications between counsel and testifying experts, regardless of the form. There is an exception for communications related to: (1) compensation the expert received, (2) facts or data provided by the lawyer that the expert considered in forming opinions, and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.
All in all, expert witness discovery will now be similar to the rules in Virginia state courts. For the most part, those rules work well.
The rule does not itself protect communications between counsel and other expert witnesses, such as those from whom disclosure is required under new Rule 26(a)(2)(C).