April 18, 2016 Articles

Expert Witnesses in High-Stakes Litigation

Some implications of the 2010 amendments, the use of experts in class certification, and some practical advice to manage costs of expert services.

By Gary Friedman, David Greenbaum, and Brian Sullivan

In the wake of the 2010 amendments to Rule 26 of the Federal Rules of Civil Procedure and the groundswell of federal court decisions over the past five years recognizing the relevance of expert testimony at the class-certification stage, the role of experts in high-stakes litigation has become more prominent than ever. The Supreme Court's acknowledgment in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2541 (2011), that a Rule 23 analysis will often "entail some overlap with the merits of [the] underlying claim" has only enhanced expert witnesses' importance to game-changing litigation. This article looks at several implications of the 2010 amendments, the use of experts in connection with class certification, and some practical advice in managing the costs of expert services.

Navigating the Boundaries of Disclosure of Expert Materials
Prior to its amendment in 2010, Rule 26 of the Federal Rules of Civil Procedure required testifying experts to prepare written reports completely stating their opinions and disclose documents pertaining to the "data or other information" used in forming their opinions. Many courts interpreted this rule as requiring the disclosure of all attorney-expert communications, even those that would otherwise be protected by the work-product doctrine and attorney-client privilege. See, e.g., Sara Lee Corp. v. Kraft Foods Inc., 273 F.R.D. 416, 419 (N.D. Ill. 2011).

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