April 28, 2011 Articles

2010 Expert Witness Rule Amendments

As of December 1, 2010, the Federal Rules of Civil Procedure that govern the disclosure of expert opinion are substantially amended.

By Gregory P. Joseph

Effective December 1, 2010, Federal Rule of Civil Procedure 26(a)(2) and (b)(4) are substantially amended. These amendments govern the disclosure of expert opinion, and they entail three principal practice changes.

Communications Between Counsel and Retained Experts
The 2010 amendments would close the door to almost all discovery of communications between counsel and retained experts. This reverses the result under the 1993 amendments to Rule 26(a)(2)(B), which were construed as allowing discovery of all communications between counsel and expert relating to the subject matter of the litigation, for two reasons. First, the 1993 version of Rule 26(a)(2)(B) mandated that the retained expert's report contain all of "the data or other information considered by the witness in forming" his or her opinion. "Other information" was interpreted to include everything communicated by counsel to expert. See, e.g., Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 716 (6th Cir. 2006).

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