Welcome changes to Rule 26 of the Federal Rules of Civil Procedure took effect on December 1, 2010. It was universally anticipated that the amendments to Rule 26 would eliminate certain unnecessary expert discovery battles and open the door for more meaningful and extensive expert-witness practice. Of course, nothing is ever as simple in practice. While the amended rules are still viewed as a welcome change, courts and attorneys called upon to navigate through the contours of these amended rules have exposed new grounds for discovery battles.
Broad Application of the Amended Expert Rules
Amended Rule 26 governs all proceedings filed on or after December 1, 2010, and it governs all previously pending proceedings "insofar as just and practicable." April 28, 2010, Supreme Court Order; 28 U.S.C. § 2074(a). For the most part, courts have taken a liberal approach to the "just and practicable" standard and have applied the amended rules in nearly all cases pending before the effective date. See, e.g., CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., No. 2:10-CV-433, 2011 WL 922611 (E.D. Va. Mar. 8, 2011) (applying amended rules to case filed on August 30, 2010); Creative Compounds, LLC v. Adorno & Yoss, LLP, No. 1:09–CV–00129–SNLJ, 2011 WL 3515472 (E.D.Mo. Aug. 11, 2011) (applying amended rules to case filed in 2009); Daugherty v. Amer. Express Co., No. 3:08-CV-48, 2011 WL 1106744 (W.D. Ky. Mar. 23, 2011) (applying amended rules to case filed in 2008 as "just and practical").
In fact, one district court articulated an exceedingly broad standard under which the amended rules would apply in any situation where newly required expert disclosures have the "ability to affect a court's admissibility analysis [for expert testimony]." Creative Compounds, LLC, 2011 WL 3515472, at *2. Because every expert report or expert disclosure has some ability to inform a court's admissibility analysis, practitioners in pending cases should expect a sweeping trend of cases applying the amended federal rules in pending actions. And, as a practical matter, counsel should seek clarification with the court before diving into expert discovery. That is, in pending federal actions commenced prior to December 1, 2010, litigants should specifically agree to formally adopt and apply the provisions of amended Rule 26—whether via Rule 26(f) discovery plan, stipulation, or otherwise.