On December 1, 2010, Federal Rule of Civil Procedure 26 was amended to decrease the scope of discoverability for communications between attorneys and their testifying experts. The new Rule 26 governs "all proceedings" pending on December 1, 2010, as long as application of the rule is "just and practicable." Ever since 1993, litigators have been well aware that all communications with testifying experts, and any draft expert reports and related notes, were discoverable. However, in 2010, Rule 26 was amended to create protections for draft expert materials and certain limited attorney-expert communications. Specifically, the new Rule 26 only requires production of communications between attorneys and experts if they deal with compensation, "facts or data," or assumptions. Prior to 2010, Rule 26 required production of all "data or other information" considered by the expert in reaching his or her opinion. This begs the question, three years after enactment of the amendments, what have the amendments really meant?
On the one hand, there has been increasing clarity about the protective effect of the amendments. Overall, courts have recognized the increased protections afforded attorney-expert communications. On the other hand, one question remains unanswered. Although courts have interpreted Rule 26 on several occasions, there is still no authority on the proverbial "facts or data" elephant in the room. What is the "other information" that was discoverable before but is no longer discoverable because not "fact or data"? That is a lingering, unanswered, and very important question.