June 28, 2012 Articles

Remaining Risks of Open Communications with Experts in Federal Court

The new federal rules significantly narrow the scope of expert discovery, but not without some notable exceptions.

By Deborah A. Vennos – June 28, 2012

In 2010, Rule 26(a)(2) and (b)(4) were amended to address issues regarding discovery of expert communications. Citing complaints that discovery of expert communications created unnecessary costs in hiring more than one expert (one consulting (or non-discoverable) and one testifying (discoverable)) and awkwardness in communications with experts, the rule was changed to immunize communications between attorneys and experts with some notable exceptions. While it is laudable that these changes were instituted with the goal of decreasing costs of litigation, it will now be more difficult to establish counsel’s influence or bias on the expert’s opinion, which should be permissible cross-examination fodder.

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