November 03, 2011 Articles

Increased Protection for Communications with Experts under Amended Rule 26

By Christopher R. Christensen and Robert Alaimon

For nearly a century, expert testimony has been an integral part of civil litigation in cases involving engineering, medical, scientific, or other technical subjects beyond the comprehension of the average person. What started out as a supplement to fact-finding during trial has grown into a complex, costly, and important aspect of pretrial discovery.

For nearly a century, expert testimony has been an integral part of civil litigation in cases involving engineering, medical, scientific, or other technical subjects beyond the comprehension of the average person. What started out as a supplement to fact-finding during trial has grown into a complex, costly, and important aspect of pretrial discovery.

As the use of experts has expanded, so have the demands of adversaries for access to the experts’ work product and scientific rationale, forcing courts to balance two opposing forces. On one side, the retaining party argues that communications between counsel and its expert should not be discoverable. For that party, permitting full access to these communications unfairly increases the cost of litigation, affects client confidentiality, and unjustly educates its adversary. In contrast, the opposing party contends that complete discovery is necessary to prepare for cross-examination and to obtain facts, theories, and opinions that would otherwise be inaccessible. Recently, the battleground over expert discovery scope was once again redefined under the federal rules.

In December 2010, changes to expert disclosure rules went into effect. The amendments protect most attorney-expert communications as privileged. Attorneys now have a much freer hand in communicating with an expert; however, traps still exist that could lead to inadvertent and damaging disclosures. This article traces the evolution of the rules governing expert disclosures and discusses the first decisions interpreting the most recent federal rule amendments.

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