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.