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Litigation: A Return to Sanity

Barring last minute intervention by Congress, on December 1, important changes to Federal Rule of Civil Procedure 26 will take effect and change the landscape of expert-related discovery. These amendments will simplify and reduce the cost of expert discovery, without sacrificing a party's ability to obtain pertinent information from an opposing expert.

Since 1993, Rule 26(a)(2)(B)(ii) has required that a testifying expert prepare a written report that includes, among other things, "the data or other information considered by the witness" in forming his or her opinions. A Committee Note accompanying that subsection states that "[g]iven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts . . . are privileged or otherwise protected from disclosure." A majority of courts have held that the 1993 amendments to Rule 26 created "a bright-line rule requiring disclosure of all information provided to testifying experts." Accordingly, courts have required disclosure of attorneys' suggested revisions to draft expert reports, prior drafts of expert reports and factual and strategic memoranda from counsel (even if otherwise protected by the work product doctrine).

Concerned that this sort of information might have to be disclosed, some attorneys have hired both testifying and consulting experts (the latter typically do not have disclosure obligations), avoided written communications with testifying experts, instructed testifying experts not to take notes and gone to great lengths to avoid creating drafts of expert reports. Opposing counsel have responded by conducting long and tedious expert depositions and undertaking other efforts to discover attorney-expert communications. The aim was to disqualify the expert or to undermine his or her credibility by, for example, demonstrating that the attorney had unduly influenced the expert's opinion or that the expert had changed his or her mind on a key issue. Attorneys often found that these maneuvers unnecessarily increased discovery costs while producing little useful information.

Heeding the advice of the ABA and other institutions, the Advisory Committee on Civil Rules has developed new provisions for Rule 26 in an effort to reverse the effects of the 1993 amendments. The language of Rule 26(a)(2)(B) will be modified so that "data or other information" will read "facts and data," thereby eliminating the phrase "other information" that has been subject to expansive interpretation. In addition, language will be added to Rule 26(b)(4)(B) to guarantee work-product protection for draft expert reports and for communications between attorneys and their testifying experts, subject to three exceptions. The exceptions cover information regarding: (1) the expert's compensation; (2) facts or data provided to the expert and considered in forming an opinion; and (3) assumptions provided to the expert and relied upon in forming an opinion.

There is widespread agreement that these reforms are likely to have at least three important benefits. First, they will decrease the cost of discovery in several ways, including by reducing the need for consulting experts, avoiding lengthy deposition questioning over changes to draft expert reports, and eliminating the need for negotiations between opposing parties over disclosure agreements.

Second, the rule changes should increase the number of qualified individuals who are willing to serve as experts. Since the 1993 amendments, some academics have refused to serve as experts due to the contortions necessary to avoid disclosure of attorney-expert communications. In addition, experts with little testimonial experience can be better prepared for trial or deposition without fear of disclosing sensitive communications between counsel and the testifying expert.

Third, the proposed amendments will eliminate splits among jurisdictions over the discoverability of attorney-expert communications.

In sum, the changes to Rule 26 will make expert-related litigation more efficient and less contentious, without hindering an opponent's ability to discover the facts and assumptions upon which an expert's opinions are based.

Read Adam Feinberg's next column.

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