August 16, 2012 Articles

Disclosure Obligations for Unretained Experts

By Courtney A. Solomon

Effective December 1, 2010, Federal Rule of Civil Procedure 26 was amended to, among other things, add a new subsection (a)(2)(C) requiring additional disclosures for unretained testifying experts. Prior to the 2010 amendment, unretained testifying experts were subject only to the disclosure obligation under Rule 26(a)(2)(A)—in other words, disclosure of the witness’s “identity.” Only those expert witnesses who were “retained or specially employed to provide expert testimony in the case” or “whose duties as the party’s employee regularly involve[d] giving expert testimony” were required to submit a written report. Fed. R. Civ. P. 26(a)(2)(B).

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