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.

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