April 30, 2012 Articles

The Rule 26 Amendments: One Year Later

Case law interpreting the 2010 amendments is still in the early stages, but a number of potentially significant issues have already emerged

by Louis E. Kempinsky and John C. Keith

On December 1, 2010, several amendments to Federal Rule of Civil Procedure 26 took effect. The primary thrust of the 2010 amendments was to address the "undesirable effects" of the 1993 amendments to Rule 26, which had provided for "routine discovery into attorney-expert communications and draft reports." 2010 amends., advisory committee's notes. The four main changes were

  1. generally narrowing the subject-matter of a testifying expert's disclosure, Fed. R. Civ. P. 26(a)(2)(B);
  2. extending work-product protection to draft expert reports, Fed. R. Civ. P. 26(b)(4)(B);
  3. providing new work-product protection to attorney-expert communications, Fed. R. Civ. P. 26(b)(4)(C); and
  4. clarifying which testifying experts are required to provide written reports, Fed. R. Civ. P. 26(a)(2)(B) and (C).

The 2010 amendments have been in effect for just over a year, and they have not been applied in all cases. The 2010 amendments apply to cases pending as of December 1, 2010, only "when just and practicable." Order Amending Federal Rules of Civil Procedure, Apr. 28, 2010. As is not surprising in light of the standard, cases examining whether it would be "just and practicable" to apply the new version of the rule are highly fact-driven and have come down on both sides. Case law interpreting the amendments is still in an early stage of development. Nonetheless, a number of potentially significant issues have already emerged.

Premium Content For:
  • Litigation Section
Join - Now