February 06, 2012 Articles

Draft Expert Reports Are Work Product? Since When?!

Effective December 1, 2010, Federal Rule of Civil Procedure 26 underwent several significant changes affecting expert witness disclosure and discovery.

By Christian T. Balducci

As she began preparing for trial in her local federal court, Lucy L. Awyer, a defense attorney, immediately recognized the opposition’s expert witness. His name? Harry “Hired” Gunn. “Ahh,” she thought to herself. “This will be an easy one. I’ll compare Harry ‘Hired’ Gunn’s draft report with his final report to discredit him on cross-examination and during the deposition.” But after looking over the expert disclosures provided by the other side, she noticed no draft report was provided.

Lucy subsequently asked opposing counsel for the draft. No response. She wrote a mean-spirited letter. No response. She wrote a wicked, spite-filled letter. No response. She finally filed a motion to compel Harry “Hired” Gunn’s draft report. On the hearing date, she confidently strolled into court, waited her turn, and then gave her standard expert-report-draft disclosure argument. The judge rolled his eyes, adjusted his glasses, and then delivered the decision. “Motion denied.”

Lucy L. Awyer lost. Wait. Hold on just a second—she lost? What gives?! Revised Federal Rule of Civil Procedure 26, that’s what. The December 1, 2010, amendments to the federal rules made significant changes to Rule 26’s provisions relating to expert discovery. The revisions address problems many feel the 1993 amendments created: wasteful discovery, costly motion practice revolving around experts, needlessly lengthy depositions, and other inefficiencies. The amendments were endorsed by the American Bar Association, the American Bar Association Section of Litigation Council, the American College of Trial Lawyers, the U.S. Department of Justice, and others. New Jersey practitioners—who operated under similar rules prior to 2010—endorsed the new model and cite no decline in expert-witness-discovery quality. Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure 12 (Sept. 2009) (“The New Jersey practitioners emphasized that discovery had improved since the amended rule was promulgated . . . .”).

This article will help you handle Rule 26’s newest amendments and additions. State court practitioners should read on as well; the American Bar Association recently issued a resolution recommending that states amend their procedural rules to reflect the 2010 amendments to Rule 26.

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