Enhanced Protections for Expert Reports and Communications Between Experts and Counsel By Phoebe Coddington The Federal Rules of Civil Procedure were recently amended “to address concerns regarding expert discovery” and, as a result, expand the protections available for expert witness reports and communications in cases pending on or after December 1, 2010. Fed. R. Civ. P. 26 advisory committee’s note (2010 Amendments). The new Fed. R. Civ. P. 26 governs “all proceedings” pending on December 1, 2010 insofar as “just and practicable.” Order of Apr. 28, 2010 (transmitting to Congress proposed 2010 rule amendments). While the precise scope of the amendments is left to judicial interpretation, the immediate practical effects will be to streamline expert discovery and make certain exchanges between counsel and testifying experts privileged. As newly amended, Rule 26(a) limits the requirement for expert witness disclosures to “facts or data considered by the witness” as opposed to the broader “data or other information” language of the prior version of the rule. Fed. R. Civ. P. 26(a)(2)(B)(ii). The purpose of this amendment is to narrow the testifying expert’s required disclosures by excluding non-factual theories or mental impressions of counsel, which many courts had previously determined fell within the expansive language of the old rule. The Advisory Committee for the amended rules noted that the phrase “facts or data” should still be “interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data ‘considered’ by the expert in forming the opinions to be expressed, not only those relied upon by the expert.” Fed. R. Civ. P. 26 advisory committee’s note (2010 Amendments) (emphasis added). Therefore, expert reports still have to disclose all facts and data the expert considered in forming his opinions but no longer must disclose legal counsel’s communications of non-factual legal theories and arguments. A new section was also added to Rule 26(b), defining the protection afforded for certain communications between experts and counsel. Rule 26(b)(4)(C) now protects all communications between a party’s attorney and an expert witness, excepting those communications that relate to the expert’s compensation, any facts provided by the party’s attorney that were considered by the expert, and any attorney-provided assumptions that the expert actually relied on in forming his or her opinions. The Advisory Committee to the amended rules did, however, leave open the possibility that if a party has a “substantial need for the discovery and [cannot] obtain the substantial equivalent without undue hardship,” the privilege for the excepted communications may be overcome. This new section, therefore, should facilitate open communication between counsel and an expert, allow an expert to take notes and prepare draft reports, and permit counsel to review drafts without fear of disclosure. The amended rules further expand previously available protections by allowing a litigant to withhold draft versions of its testifying expert’s report, as such drafts now clearly fall within the scope of work product protection. Fed. R. Civ. P. 26(b)(4) (work product protection of Rule Published on the Trial Practice Committee’s website, http://apps.americanbar.org/litigation/committees/trialpractice/home.html. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
26(b)(3)(A)–(B) covers “drafts of any report or disclosure”). Prior to the 2010 amendments, these drafts were generally recognized as discoverable and not privileged. Because reports for testifying experts were discoverable, trial counsel often retained two experts with duplicative expertise to prepare for trial. The non-testifying expert would work with counsel to develop theories of the case and strategies for trial since his or her communications with counsel were protected. After counsel was satisfied with the development of the trial strategy, a second expert would be commissioned to prepare the expert report and testify at trial based on the nontestifying expert’s work product. Extending work product protection to drafts of all expert reports should obviate the need to hire multiple experts on the same subject matter and reduce costs and litigation inefficiencies that were prevalent under the old rule. At present, only two courts have discussed the Rule 26 amendments, but the amendments did not make a substantive difference to the court’s analysis. First, in Chevron Corp. v. Shefftz, the U.S. District Court for the District of Massachusetts held simply that it is “just and practicable to apply the new Rule 26” because the parties in that case had notice of the change and applying the new rule would not result in changing the rules in the midst of ongoing discovery. No. 10-mc10385, 2010 WL 4985663, *5 (D. Mass. Dec. 7, 2010). More recently, the U.S. District Court for the District of Idaho in Adams v. United States addressed the amended rules in more detail, but limited its explanation to the following: Amendments to Rule 26(b)(4)—that went into effect on December 1, 2010—restrict, but do not eliminate entirely, the discovery of privileged material considered by experts. The amendments still allow discovery of draft reports or attorney-client communications upon a showing of substantial need, and also freely allow discovery of attorney-expert communications concerning (a) compensation, (b) facts or data provided by counsel and considered by the witness in forming opinions, and (c) assumptions provided by counsel and relied upon by the expert.” No. 4:03-CV-049, 2011 WL 39139, *1 n.1 (D. Idaho Jan. 4, 2011). Therefore, as more cases move through discovery under the newly amended rules, courts will have to determine the breadth of the new privilege. Nevertheless, the amendments make clear that expert draft reports and disclosures, as well as other communications between counsel and testifying experts, are now entitled to a greater level of protection. In the end, the amendments significantly alter the ways in which attorneys and experts can communicate and collaborate in developing expert reports. The privileges created by the amendments remove much of the risk of disclosure of confidential information shared with experts as a case develops and should make the expert discovery process more effective and efficient. Phoebe Coddington is with Winston & Strawn in Charlotte, North Carolina.
Published on the Trial Practice Committee’s website, http://apps.americanbar.org/litigation/committees/trialpractice/home.html. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.