July 20, 2015 Articles

Protecting Draft Expert Reports from Discovery

Expert notes and communications not independently protected as attorney work product might not be shielded

by John M. Barkett

In 2010, the Federal Rules of Civil Procedure were amended to shield from discovery draft reports and, with three exceptions, lawyer-expert communications, by characterizing them as attorney work product. Rule 26(b)(4)(B) and (C) provide:

(B)  Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C)  Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i)  relate to compensation for the expert's study or testimony;
(ii)  identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii)  identify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.

The committee note emphasizes that the work product protection for draft reports applies "regardless of the form of the communication, whether oral, written, electronic, or otherwise." The protection also applies to drafts of any supplements to a report. Courts have treated these changes in mixed ways, however, with some courts not appreciating that a change was made and other courts getting it right.

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