Federal Rules Changes Effective Dec. 1

(Reprinted from The Third Branch, Vol. 42, Number 11, November 2010)

Rule 26 Amendment Affects Expert Witnesses

Among the changes is an amendment to Civil Rule 26 that will have a significant impact on how lawyers use expert witnesses. The amendment extends work-product protection to draft reports by testifying expert witnesses and, with some specified exceptions, communications between attorneys and their experts.

Before the change, Rule 26 had been interpreted to require reports from all witnesses offering expert testimony, and to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. As a result, lawyers and experts often took elaborate steps to avoid creating any discoverable record. At the same time, they invested time and effort in discovering the other side’s drafts and communications.

“The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts,” said Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure. To sidestep the rule requirement, experts have often avoided taking notes or making records of any preliminary analyses or opinions, or producing any draft report. The only written record has been the final report.

This practice added to the cost and burden of discovery, impeded the efficient and proper use of experts by both sides, needlessly lengthened depositions, detracted from cross-examination into the merits of the expert’s opinions, made some qualified individuals unwilling to serve as experts, and may have reduced the quality of an expert’s work.

Nevertheless, discovery into the basis of an expert’s opinion is critical. And the best way to scrutinize the merits of an expert’s opinion, the Advisory Committee on the Civil Rules of Procedure concluded, is by cross-examination “on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues.”

The amended rule specifically provides that the following communications between lawyer and expert are open to discovery: (1) compensation for the expert’s study or testimony, (2) facts or data provided by the lawyer that the expert considered in forming opinions, and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.

The amendments to Rule 26 are supported by lawyers and bar organizations, including the American Bar Association, the Council of the American Bar Association Section on Litigation, the American College of Trial Lawyers, the American Association for Justice, the Federal Magistrate Judges’ Association, the Lawyers for Civil Justice and the U.S. Department of Justice, among others.