Unless Congress legislates to the contrary, the United States Supreme Court has approved amendments to Rule 26 which will take effect on December 1, 2010.  These much needed amendments affect Expert Witness work product and communications and became an issue in 1993 when the Committee Notes from Rule 26(b)(4) broadened their discovery.  The Committee reasoned that only by disclosure of communications, notes and drafts of work reports used by the expert could the fact finder determine how much of the expert’s opinion was influenced by the attorney.

These Committee Notes put the Expert Witness at a great disadvantage and forced attorneys to practice in murky waters.  Both attorneys and experts would go to great lengths to avoid creating a discoverable paper trail. In an article written for the ABA, Calvin Cheng writes that attorneys would go so far as to, “…prohibit experts from taking any notes, making any record of preliminary analyses or opinions, or producing any drafts of the report.”  It stands to reason that the quality of Expert Witness work product declined. In depositions, behavior by counsel trying to prove the existence of work product became egregious, costly and counter-productive.

The American Bar Association finally called for a change and the following amendments were created:

Rule 26(b)(4) will extend immunity to the discovery of draft reports by testifying expert witnesses and, with three exceptions, to communications between Expert Witnesses and retaining counsel.

Rule 26(a)(2)(c) would require an attorney relying on a testifying expert who is not required to provide a 26(a)(2)(b) report to disclose the subject matter and summarize the facts and opinions that the expert witness is expected to offer.

In the end, this seems like a fair compromise.  No longer will communications, drafts, notes, preliminary findings or opinions be discoverable under Rule 26(b)(4). Those experts specifically retained to provide expert testimony need only provide a final report for discovery.  Three exceptions to this rule apply but they seem fair enough: (1) Communications regarding expert compensation; (2) Data given by the attorney to the expert which was considered in forming his opinion; and (3) Assumptions provided by the attorney on which the expert relied in forming his opinion.

Those experts who are “not retained” but who qualify as Experts for a case need only summarize the facts that support their opinion.  In this way, they are not unduly burdened for their time and yet all parties are aware of what their testimony will include.

Save a few, the amendments to Rule 26 have been met with overwhelming support by attorneys and bar associations.  For Expert Witnesses, it means higher quality work product in a less adversarial arena.  In essence, these amendments are a win-win for both attorneys and experts.


Posted by Experts-Blog

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