Expert discovery may seem daunting to new lawyers. Below are a few practice pointers to aid those unfamiliar with the process of communicating with experts and drafting and reviewing expert reports regarding how to best protect against waiver of privilege and work product protection.
• Distinguish between testifying and non-testifying experts. In contrast to the discovery available from testifying experts, discussed in more detail below, facts known or opinions held by non-testifying experts are generally discoverable only upon a showing of “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(D).
• Be aware of privilege issues and how they are in flux. Before Federal Rule of Civil Procedure 26 (Rule 26) was amended in 2010, the majority of courts held that material protected by attorney-client privilege or work product protection shown to a testifying expert was discoverable under Rule 26. See, e.g., In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375-76 (Fed. Cir. 2001). The 2010 amendments, however, expressly curtailed discovery of draft expert reports, see Fed R. Civ. Pro. 26(b)(4)(B), and certain communications between a testifying expert and the party’s counsel, see Fed R. Civ. Pro. 26(b)(4)(C). Courts continue to interpret several aspects of these amendments—for example, what constitutes a draft report. See e.g. Dongguk University v. Yale University, No. 3:08-cv-00441, 2011 WL 1935865, at *1 (D. Conn. May 19, 2011).
• Understand the limits of Rule 26 protection. While Rule 26(b)(4)(C) provides that “communications between the party’s attorney and any witness required to provide a report” may be protected work product, it limits that protection “to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.” Fed. R. Civ. Pro. 26(b)(4)(C). Thus, many attorney communications with expert witnesses are still subject to disclosure. See, e.g., In re Application of the Republic of Ecuador, 735 F.3d 1179, 1186-87 (10th Cir. 2013). Counsel should exercise caution in communicating with a testifying expert, and take care to segregate protected communications from non-protected communications when possible.
Practitioners should also bear in mind that communications with experts, even if protected under Rule 26(b)(4)(C), may still be subject to production if the adversary can show “substantial need” for such materials, as is the case with work product generally. See Fed. R. Civ. Pro. 26(b)(3)(A)(ii).
Mollie Kornreich is an associate at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates in New York, New York.