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)).

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