May 31, 2011 Articles

Using Amended Rule 26 to Get the Most Out of Experts

The revisions to Federal Rule of Civil Procedure 26 strike a new balance between expert discovery and the work-product doctrine.

By Robert M. Craig and Cathleen M. Devlin

Dramatic revisions to Rule 26 of the Federal Rules of Civil Procedure took effect on December 1, 2010. These welcome changes strike a new balance between expert discovery and the work-product doctrine and, among other things, largely shield attorney-expert communications and draft expert reports from discovery. Now, attorneys and retained testifying experts are far more free to communicate openly with each other to develop expert opinions based on an appropriately robust level of consultation. Attorneys no longer need to be distracted by potentially time-consuming, burdensome, and expensive gamesmanship to avoid creating a discoverable record in communicating with a retained testifying expert and developing that expert's report. While the contours of amended Rule 26 will be further refined as they are examined and interpreted by the courts, there can be no question that the rule changes represent a meaningful modification of prior procedure—and create meaningful opportunities for informed attorneys to use the rule to their advantage in expert-witness practice generally and in working with retained testifying experts in particular.

The key amendments to Rule 26(a)(2) and 26(b)(4) accomplish the following:

  • They eliminate the requirement that a retained testifying expert's report must disclose "data and information considered" in favor of a narrower "facts or data considered" standard (Rule 26(a)(2)(B)(iii));

  • They provide that non-retained testifying experts, such as treating physicians, are not required to produce a written report but must make certain summary-level disclosures of the subject matter, facts, and opinions to which they are expected to testify (Rule 26(a)(2)(C));

  • They extend work-product protection to draft reports and draft disclosures of retained testifying experts (Rule 26(b)(4)(B)); and

  • They extend work-product protection to most communications between attorneys and retained testifying experts, subject to three limited exceptions (Rule 26(b)(4)(C)).

Expert Report Disclosure Requirements
Retained or Specially Employed Testifying Experts
Prior to the 2010 amendments, reports provided by retained experts were required to disclose "data or other information considered" by the expert in forming his or her opinions. Because of its vagueness, this "other information" language was often utilized as a tool by attorneys and interpreted by the courts to require the broad disclosure of attorney-expert communications and draft expert reports. Under the 2010 amendments, the reporting requirements for a retained testifying expert are narrowed to a more limited "facts or data considered" standard. Compare Fed. R. Civ. P. 26(a)(2)(B)(ii) (2010) with Fed. R. Civ. P. 26(a)(2)(B)(ii) (2007).

While the advisory committee notes to the amended rule observe that this "facts and data considered" standard is to be "interpreted broadly" to include "any material considered by the expert, from whatever source, that contains factual ingredients," the notes also specify that the standard "is meant to limit disclosure to material of a factual nature." Further clarified in the notes is that this amended language is specifically designed to exclude from disclosure the "theories or mental impressions of counsel." Fed. R. Civ. P. 26(a)(2)(B) advisory committee's note (2010). This broad exclusion of work-product materials from disclosure is, however, subject to the three important exceptions set forth in amended Rule 26(b)(4)(C), discussed below. This explicit reaffirmation of work-product protection afforded to such material should eliminate an attorney's need to undertake elaborate efforts to avoid creating a discoverable record, such as by strictly prohibiting note-taking by experts and confining all attorney-expert communications to verbal exchanges. It is also designed to obviate the need for the even more inefficient and costly practice of engaging two separate experts to advise on the same subject matter, including a consulting expert able to brainstorm freely with counsel and develop theories and strategy without fear of discoverability and a testifying expert whose role is limited to the preparation of a report and presentation of trial testimony. Instead, the amended rule paves the way for a far more candid and comprehensive level of strategy development and collaboration with retained testifying experts, helping to maximize the ultimate value of their opinions and testimony.

Of course, amended Rule 26 continues to require disclosure in an expert's report of all facts or data "considered" by the expert, as opposed to requiring disclosure of only facts or data that have been "relied on" by the expert. Accordingly, all material of a factual nature that is gathered or received and reviewed by the expert, regardless of whether any such material was ultimately "relied on" by the expert in forming his or her opinions, is subject to disclosure. Given this, it is important for counsel to exercise sound judgment in determining what materials to furnish for the expert's consideration—not only to ensure that the expert is equipped with sufficient facts and data to develop fully informed opinions, but also to minimize the risk of challenges to the expert's opinions premised upon his or her failure to consider arguably material facts or data. Likewise, because facts or data obtained by the expert from sources other than counsel, such as fact witnesses, consulting experts, or other third parties, will be discoverable if "considered" by the expert, it is important for counsel to manage this flow of information carefully.

Non-Retained Testifying Experts
Experts in this category most often include treating physicians, government accident investigators, or other forms of "hybrid" witnesses who are not specially employed to provide expert testimony but who will testify both to facts and expert opinions. Prior to the 2010 amendments, such an expert was not required to provide a detailed written report. Fed. R. Civ. P. 26(a)(2)(B) and (C) (2007). Even so, in the interest of allowing advance notice of an expert's opinions, courts sometimes required experts of this type to furnish expert reports. Under the 2010 amendments, such an expert remains exempt from the written report requirement of Rule 26(a)(2)(B), but he or she must provide summary disclosures, including "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C) (2010). While not expressly addressed in the rule or accompanying advisory committee notes, most commentators have assumed that these summary disclosures will be drafted entirely by counsel. See Edward M. Spiro and Judith L. Mogul, "Amendment of Expert Discovery Rules," 224 N.Y.L.J. (Dec. 1, 2010) (collecting citations). The question of how much detail counsel must be included in these summary disclosures remains open for determination by the courts.

The Discoverability of Draft Expert Reports and Other Communications
Prior to the 2010 amendments to Rule 26, preliminary draft versions of expert reports and written communications between attorneys and retained testifying experts were generally fair game for discovery. In one of the most significant changes to expert-witness practice implemented by amended Rule 26, work-product protection is now extended to preclude disclosure of both draft reports and many forms of attorney-expert communications as part of the discovery process.

Draft Expert Reports and Draft Disclosures
Pursuant to Rule 26(b)(4)(B), a new provision added to the rule in conjunction with the 2010 amendments, drafts of any report or disclosure required under Rule 26(a)(2) are now afforded work-product protection. According to the advisory committee notes to the amended rule, this protection is in place "regardless of the form in which the draft is recorded, whether written, electronic or otherwise," and additionally applies to protect drafts of any supplementations to expert reports or disclosures that may be required by Rule 26(e). Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010).

A key practical benefit of this rule change is that it will likely enhance the efficiency and cost-effectiveness of the expert-discovery process by eliminating the need for retained testifying experts to take elaborate measures to avoid the creation of draft reports and substantially reducing time wasted by litigants on attempts to require the production of elusive preliminary draft versions of reports and attorney comments to experts memorialized in any such drafts.

Communications Between Attorneys and Retained Testifying Experts
Pursuant to the 2010 amendments to Rule 26, a new provision (b)(4)(C) has also been added. It broadly sweeps within the ambit of work-product protection all communications between a party's attorney and a retained testifying expert, "regardless of the form of the communications," whether oral, written, electronic, or otherwise, with three enumerated exceptions noted below. New Rule 26(b)(4)(C) is specifically designed "to protect counsel's work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery." Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010). Given this, the rule includes within its protection from disclosure any "preliminary" expert opinions of retained testifying experts that are shared with counsel and also protects communications between counsel and the expert's assistants and staff. The advisory committee notes likewise suggest that the term "party's attorney" should be interpreted broadly and is "not to be limited to communications with a single lawyer or a single law firm;" extends to multiple attorneys and/or law firms representing a given party who are utilizing the same expert across multiple, related suits about a given product or service; and may even extend so far as to cover "communications with in-house counsel for the party," even if the in-house counsel is not counsel of record in the action.

The new rule does not, however, afford work-product protection to attorney-expert communications to the extent that they:

  • "relate to compensation for the expert's study or testimony" (Rule 26(a)(2)(C)(i). This exception extends broadly to communications regarding "all compensation for the study and testimony provided in relation to the action," including any communications about "additional benefits to the expert, such as further work in the event of a successful result in the present case." Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010).);

  • "identify facts or data that the party's attorney provided to the expert and that the expert considered in forming the opinions to be expressed" (Rule 26(a)(2)(C)(ii). This exception "applies only to communications 'identifying' the facts or data provided by counsel," and "further communications about the potential relevance of the facts or data are protected." Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010).); or

  • "identify any assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed" (Rule 26(a)(2)(C)(iii). "This exception is limited to those assumptions that the expert actually did rely on in forming the opinions to be expressed," and "[m]ore general attorney-expert discussions about hypotheticals, or exploring possibilities based on hypothetical facts, are outside this exception." Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010).).

The second and third of these exceptions in particular are intended to preserve the ability of counsel to obtain full discovery about the opinions to be offered by a retained testifying expert and the development, foundation, and basis of those opinions. Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010). As such, they are likely to be a fertile battleground for future discovery disputes as the courts work to resolve the tension between the rule's newly expanded scope of work-product protection and the continuing obligation, as expressed in these exceptions, to disclose communications made by an attorney to an expert concerning facts and data considered and assumptions relied upon by the expert in forming his or her opinions.

As an example of one potential battleground, the second exception to the new rule and its associated advisory committee notes attempt to create a distinction between an attorney's communications to an expert identifying facts or data, which are discoverable pursuant to the second exception, and the attorney's communications to the expert addressing the potential relevance of such facts or data, which are protected from disclosure. This distinction is a subtle one and could prove quite difficult to parse out of an expert's written notes of a lengthy strategy discussion with counsel. As Damon W.D. Wright observed, "even the most experienced federal practitioners may have trouble determining when their communication identified 'facts or data' (and thus is not protected) versus when their communication addressed the potential relevance of 'facts or data' (and thus is protected)." "Expert Discovery Returns to the Past," The Fed. Law., Jan. 2011.

As another example, the advisory committee notes to the amended rule specify that, notwithstanding the work-product protection afforded to draft reports and attorney-expert communications pursuant to new Rules 26(b)(4)(B) and (C), attorneys remain "free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions to be expressed." If an expert were to consider a series of assumptions provided by counsel as part of his or her "alternative analyses" but did not ultimately rely on these assumptions in forming his or her final opinions, would counsel's communications to the expert about those assumptions be discoverable "alternative analyses"? Or would they be protected from disclosure as work-product that does not fit into the third exception? Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010); see also Damon W.D. Wright, "Expert Discovery Returns to the Past," The Fed. Law., Jan. 2011; Edward M. Spiro and Judith L. Mogul, "Amendment of Expert Discovery Rules," 224 N.Y. L.J. (Dec. 1, 2010).

Additionally, the new rules and exceptions generate ambiguity as to the fate of attorney-client privileged materials that an attorney elects to share with a retained testifying expert who then considers and/or relies upon those materials in forming his or her opinions. If these attorney-client privileged materials identify facts or data that are considered by the expert or assumptions that are relied upon by the expert, the provision of such materials to the expert could arguably waive the privilege and render those materials discoverable. See Adams v. United States, No. 03-CV-049, 2011 WL 391939, at **1, 4 (D. Idaho Jan. 4, 2011) ("[I]f plaintiff's counsel shared otherwise privileged or protected documents with [the expert], any protection would be waived to the extent [the expert] considered the document"); see also Damon W.D. Wright, "Expert Discovery Returns to the Past," The Fed. Law., Jan. 2011; Edward M. Spiro and Judith L. Mogul, "Amendment of Expert Discovery Rules," 224 N.Y. L.J. (Dec. 1, 2010) (commenting that the new rules may "leave open the question of whether and to what extent the attorney-client or other privileges must give way to the requirements of expert discovery").

Until the courts have had an opportunity to address unanswered questions like these, a healthy measure of caution and diligence remains warranted. As a practical matter, counsel should not assume that every communication to a retained testifying expert that appears to fall outside of the strict letter of one of the three exceptions set forth in Rule 26(a)(2)(C) will be unequivocally entitled to work-product protection and shielded from discovery. Likewise, counsel should not assume that the attorney-client privilege cannot be waived by sharing privileged materials with a retained testifying expert, especially if the materials can fairly be characterized as falling into one of the exceptions established by Rule 26(a)(2)(C).

Using the Amended Rule
Confirm that the amended rule applies to your case and, if not, agree to apply it. Pursuant to Federal Rule of Civil Procedure 86, the 2010 amendments to Rule 26 apply to proceedings in any federal court action commenced after December 1, 2010, and to any proceedings after December 1, 2010 "in an action then pending." Fed. R. Civ. P. 86(a)(1) (2010); see also Chevron Corp. v. Shefftz, Civil Action No. 10-MC-10352, 2010 WL 4985663, at *5 (D. Mass. Dec. 7, 2010) (applying new amendments to a pending federal action). The amended rule may not apply to such pending actions, however, if the court determines that their application would be "infeasible or work an injustice." Fed. R. Civ. P. 86(a)(2)(B) (2010). In an abundance of caution, in pending federal actions commenced prior to December 1, 2010, litigants should specifically agree to formally adopt and apply, whether via a Rule 26(f) discovery plan, stipulation, or otherwise, the provisions of amended Rule 26. Because amended Rule 26 does not apply in the state courts or in arbitration proceedings, parties should likewise consider similar agreements among counsel in such matters.

Select and retain your testifying experts early. As described above, prior to the 2010 amendments to Rule 26, the significant risk that draft expert reports and communications with retained testifying experts would be discoverable often forced litigants into bearing the expense and inconvenience of hiring separate consulting and testifying experts. Amended Rule 26 is likely to extinguish this practice and, indeed, reduce the need for hiring consulting experts overall, as counsel are now in a position to engage in far more robust consultation with a retained testifying expert, including candid and comprehensive collaboration on theories, strategy, and case strengths and weaknesses without fear of discoverability. Of course, nothing in amended Rule 26 in any way limits or prohibits the use of consulting or undisclosed experts, and the same high level of protection from disclosure afforded to such experts prior to the 2010 amendments remains in force. See, e.g., Adams, 2011 WL 391939, at **2–3 (holding that under both the old and new versions of Rule 26, parties cannot obtain discovery from experts that are not retained to testify at trial, except under very narrow circumstances specified in the rule). To capitalize upon this new freedom to collaborate with retained testifying experts throughout the discovery and trial-preparation process, select and retain your testifying experts at as early a stage in the litigation as reasonably possible.

Do not abandon your affirmative expert discovery efforts—work-product protection from disclosure has expanded under the amended rule, but it still has important limits. Nothing in the 2010 amendments to Rule 26 is intended to disrupt the "gatekeeping functions called for by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and related cases." Fed. R. Civ. P. 26(b)(4) advisory committee's note (2010). Indeed, the amended rule contemplates full discovery about the opinions to be offered by a retained testifying expert and the development, foundation, and basis of those opinions. To that end, counsel remain free to examine expert witnesses in depositions about alternative analyses, testing methods, or approaches to the issues on which they are offering expert opinions. In addition, as noted above, an expert's communications with anyone other than the party's counsel remain fair game for discovery. Thus, even with the 2010 amendments in place, counsel should not hesitate to serve carefully worded written expert discovery requests or to notice expert depositions to obtain discoverable information about the development, foundation, and basis of a retained testifying expert's opinions.

On the other hand, resist the urge to draft or rewrite your retained testifying expert's opinions and report. Because discovery of the opinions to be offered by a retained testifying expert and of that expert's development, foundation, and basis for his or her opinions remain fair game, counsel should conscientiously avoid the unduly heavy-handed editing of an expert's opinions or report or putting an expert in a position of having to conform his or her analysis to fit a predetermined end result. While the 2010 amendments to Rule 26 may make it much more difficult for an adversary to detect the nature and extent of counsel's influence in the formulation of the expert's opinion and report, under no circumstances should the rule changes be regarded as license to draft or rewrite your retained testifying expert's opinions and report as you see fit.

Be mindful that discovery of draft reports and protected attorney-expert communications may still be possible upon a showing of "substantial need." Even after the 2010 amendments, limited circumstances exist under which a court could order the disclosure of draft reports or attorney-expert communications. Specifically, Rule 26(b)(3)(A)(ii) requires a party seeking such discovery to demonstrate that the party has "substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." The advisory committee notes observe, however, that it will be "rare" for a party to be able to make such a showing and that the refusal or failure of one's adversary to produce the required disclosures or discovery does not establish "substantial need" or "hardship" within the meaning of Rule 26(b)(3)(A)(ii). The kinds of situations in which the courts will find "substantial need" and "hardship" sufficient to justify issuance of a court order compelling discovery in the wake of the amended rule remain to be seen.

Take the time to prepare your retained testifying expert to "expect the unexpected" during cross-examination at trial. Given the dramatic limitations on expert discovery imposed by the amendments to Rule 26, counsel can expect to encounter much more aggressive and creative cross-examination of their retained testifying experts at trial on the substantive merits of their expert opinions. There is no substitution for investing the time necessary to carefully and thoroughly prepare your expert for cross-examination at trial to ensure that he or she is fully equipped to put his or her best foot forward in support of your case.

Keywords: litigation, expert witnesses, Federal Rules of Civil Procedure

Robert M. Craig is with Charles River Associates in The Woodlands, Texas. Cathleen M. Devlin is with Saul Ewing, LLP, in Philadelphia, Pennsylvania. The authors thank Christina D. Riggs of Saul Ewing, LLP, for her contribution to this article.

This article was originally published in the CLE materials for the program "Using the New Federal Rule to Get the Most Out of Your Experts" at the ABA Sections of Litigation and Criminal Justice Section Joint Annual Conference, April 13–15, 2011. Copyright 2011 by the American Bar Association. Reprinted with permission.


Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).