Significant changes in Federal Rules governing expert discovery and related disclosures will go into effect on December 1, 2010. Prior to these new rules, experts retained to testify were required to produce an expert report under Rule 26(b)(2)(B) and were not entitled to work product protection for communication between the reporting expert and counsel. This lack of work product protection meant that any communication between counsel and the expert was potentially discoverable, including “the data or other information” considered by the reporting expert. This essentially allowed discovery of all communications between counsel and a reporting expert, and of all the drafts of that expert’s report. The Committee on Rules of Practice and Procedure stated that Rule 26 as it existed prior to these revisions inhibited “robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion.”
Under the new rules, Rule 26(a)(2)(B)(ii) is revised from “the data or other information” to only “the facts or data considered.” Rules 26(b)(3)(A) and (B) now specifically protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form of the draft. Additionally, the amended Rule 26(b)(4) provides trial-preparation protection to all forms of communication between counsel and a reporting expert’s reports, with the following exceptions: communications that (i) relate to expert’s compensation for the study or testimony, (ii) identify facts or data that counsel provided and that the expert considered, or (iii) identify assumptions that counsel provided and that the expert relied on. You can review the amendments here.
These new rules are expected to simplify communication between counsel and reporting experts by allowing reporting experts to create drafts as part of their work process, share drafts with counsel for clarification purposes and allow counsel and reporting experts to use written forms of communication. The AICPA has stated that the new rules are “likely to enhance the ability of experts to collaborate with counsel to develop and refine theories and opinions.” The rules are also predicted to decrease the costs of trial preparation if counsel does not need to retain two sets of experts, one reporting expert who is fully subject to discovery and one non-reporting expert who is protected from discovery.
What to expect now? The new federal court rules are not retroactive, which presents some uncertainty as to how the rules will impact current cases and what changes, if any, may come about at the state court level. Currently, we are not yet aware of any similar Arizona State Court modifications. It is not yet clear if the amended rules apply to all matters as of December 1, 2010, and how that would affect discovery in matters filed prior to December 1st. Additionally, the changes to Rule 26 are only applicable to witnesses who are required to provide a report, therefore communications between counsel and other testifying experts may still be discoverable.