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).