November 14, 2017 civil procedure

Rule 26 to Change: Limited Privilege for Draft Reports and Communications

By Charles S. Fax

Since it was last amended in 1993, Federal Rule of Civil Procedure 26(a)(2) has bedeviled lawyers in dealings with expert witnesses. However, proposed, amendments promise to resolve the difficulties caused by the present rule.

Rule 26(a)(2) currently requires the disclosure of expert testimony, including a written report prepared and signed by the expert, unless the parties stipulate or the court orders otherwise. The report must contain a statement of the witness’s opinion and its basis, the material considered by the expert in formulating the opinion, all exhibits to be used in conjunction with the opinion, the witness’s qualifications and publications, a list of cases in which the expert has testified, and a statement regarding compensation. All material that was considered by the expert must be disclosed.

The 1993 Committee Note accompanying the amendment underscored the significance of that term:

The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.

Even data rejected by the expert in formulating the opinion must be disclosed under the current rule because the act of rejection implies prior consideration.Most federal courts that have examined the issue have followed the logic of the Committee Note, and have held that all draft expert reports and all communications with trial counsel must be disclosed to the adverse party.

This explains the oral Kabuki dance to which many experts are subjected when retained by counsel:

Attorney: “Everything we write to each other is subject to discovery and cross-examination, so we should keep written communications to a minimum and avoid any substantive written discussion. All of your notes and drafts must be disclosed, so keep your notes to a minimum, and avoid preparing drafts.”

Expert: “But the nature of my work is incremental. I have to make notes, and it is essential to prepare successive drafts, else my opinions may not be properly developed.”

Attorney: “I know, I know, but nonetheless . . .”

The quandary created is twofold. First, the restriction in free communications between lawyer and expert impedes the development of the most sophisticated and helpful opinion that could be rendered with adequate consultation. Second, the costs of expert discovery are often magnified, as many attorneys find it prudent to retain both a testimonial expert and a non-testimonial consultant insulated from discovery. The non-testimonial consultant, working with the lawyer, screens and packages the material to be provided to, and communicates orally with, the testimonial expert to guide the direction and substance of the opinion. Costs are further magnified by the arduous discovery process attendant to comparison of every written communication, note and draft language, on the one hand, with the final, polished report, on the other, and exhaustive deposition inquiry regarding same.

In response, the ABA proposed an amendment to Rule 26 in 2006 that would provide a limited privilege to an expert’s draft reports and communications with counsel. The Committee on Rules of Practice and Procedure of the Judicial Conference has since drafted an amended Rule 26(b)(4) (together with other amendments) that has been published for comment.

New Rule 26(b)(4)(B) provides that “Rules 26(b)(3)(A) and (B) [which codify the “work-product” doctrine] protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form of the draft.” Thus, subject to the “otherwise discoverable” and “substantial need/undue hardship” exceptions to the work-product doctrine, draft expert reports will be protected from disclosure in all federal cases.

The amendments specifically extend work-product protections to drafts of both expert reports and expert party disclosures under Rule 26(a)(2)(C), and to attorney-expert communications. The proposal permits three exceptions to work-product protections, allowing routine discovery of attorney-expert communications relating to compensation, identifying facts or data the attorney provided to the expert and that the expert considered in forming the opinions to be expressed, and identifying the assumptions that the attorney provided to the expert and that the expert relied upon in forming his or her opinions.

Public hearings are scheduled to conclude early this year, with final written comments due by February 17, 2009.

Editor’s Note: The Supreme Court must approve the change and refer it to Congress no later than May 1, 2009. Congress then has until December 1, 2009, to override the change, and if that does not happen, it becomes law on December 1, 2009.


Charles S. Fax is an associate editor for Litigation News.


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