Adjusting to the New Federal Expert Discovery RulesBy Douglas J. Pepe – September 29, 2010
Expert discovery is changing dramatically in federal court. On December 1, 2010, absent Congressional action, a set of new rules go into effect governing Federal expert discovery and disclosure. When adjusting to these new rules, there are two key changes to keep in mind.
Draft Reports and Most Attorney-Expert Communications Are No Longer Discoverable
Communicating with experts in federal court has proven to be a dangerous business. Under the pre-December 1, 2010, version of the Federal Rules of Civil Procedure, experts who are retained or employed to testify as experts (reporting experts) have to produce an expert report under Rule 26(b)(2)(B). Under the old rules, there is no work product protection for communications with reporting experts. Every communication between counsel and a reporting expert is potentially discoverable. Every draft reflecting every word change in the expert’s report can be sought and obtained by the other side. When it comes to talking to experts, the old rules are full of traps for the unwary or inattentive.
These traps result from three words in the old rule and a sentence written by the Advisory Committee. Old Rule 26(a)(2)(B)(ii) mandates disclosure of “the data or other information” considered by reporting experts in forming their opinions (emphasis added). The accompanying 1993 Advisory Committee Note states what these three words mean: “[L]itigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.” As a consequence, all communications with reporting experts and all draft expert reports are fair game for discovery under the old rules. See Adv. Comm. Report Accompanying Proposed Amendments (“Whatever may have been intended, this passage has influenced development of a widespread practice permitting discovery of all communications between [an] attorney and expert witness, and of all drafts of the [expert’s] (a)(2)(b) report.”) (emphasis added); Judicial Conference Report Accompanying Proposed Amendments (1993 changes to Rule 26 “were interpreted to allow discovery of all communications between counsel and expert witnesses and all draft expert reports”).
The new 2010 rules clarify and limit the information that is subject to expert discovery. First, the phrase “data or other information” in Rule 26(a)(2)(B)(ii) is thrown out, in favor of the narrower phrase “facts or data.” Second, Rule 26(b)(4) is amended to guarantee work product protection to draft expert reports and most attorney-expert communications (with specified exceptions for communications that (i) relate to expert compensation, (ii) identify facts or data given to the expert that the expert considered, or (iii) identify assumptions that the expert relied on). The Advisory Committee Note accompanying the new 2010 rules eliminates any ambiguity as to what is intended by these changes: They “alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports” (emphasis added).
Under the 2010 rules, communications from counsel are fair game for discovery only to the extent they address compensation, “identify” facts or data that the reporting expert considers or “identify” assumptions that the expert actually relies on. The expert’s final report itself must also be disclosed. All other communications—and all draft reports—are now generally out of bounds (unless work product protection can be overcome by a Rule 26(b)(3)(A)(ii) showing of “substantial need” and unavailability from other sources without “undue hardship”). With these changes and the clarity they provide, the business of communicating with experts has gotten a little less dangerous in Federal court.
Summary Disclosures Now Required for Non-Reporting Experts
The new rules add new disclosure requirements for non-reporting experts, such as treating physicians and party employees who give expert testimony at trial.
The old rules require no substantive disclosure relating to non-reporting experts. Old Rule 26(a)(2)(B) calls for a report only for experts “retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Treating physicians, employees who give expert testimony but whose job function is not to testify as an expert and other non-reporting experts must be identified under the old rules, but the subject matter and substance of their anticipated testimony need not be disclosed at all. See Rule 26(a)(2)(a); see also 1993 Advisory Committee Note (“A treating physician . . . can be deposed or called to testify at trial without any requirement for a written report.”). The lack of any meaningful disclosure for non-reporting experts caused some courts to mandate additional expert disclosures, despite the absence of any basis for it in the text of Rule 26. See Judicial Conference Report Accompanying Proposed Amendments (describing practice of some courts “to require reports from all witnesses offering expert testimony”).
The new rules strike a balance between the full disclosure regime applicable to reporting experts and the “no disclosure” rule for non-reporting experts that existed under the old rules. This is accomplished by new Rule 26(a)(2)(C). The new rule requires a summary disclosure for all non-reporting experts. Now, in addition to identifying the non-reporting expert by name, counsel must now disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
Under new Rule 26(b)(4)(B), drafts of non-reporting expert disclosures are accorded the same degree of work product protection given to reporting expert drafts. All expert reports and disclosures—those of reporting and non-reporting experts alike—are now generally undiscoverable.
It bears emphasis that the new non-reporting expert disclosures are not expert reports. They are summary disclosures prepared by counsel, not the expert. The disclosures under new Rule 26(b)(4)(B) are “considerably less extensive” than full expert reports under Rule 26(a)(2)(B), and the Advisory Committee Note to the new rule admonishes courts to “take care against requiring undue detail” for experts that are not specially retained to testify.
With the new changes to Rule 26, many previously discoverable attorney-expert communications—and all draft expert reports—are protected from disclosure, and the days in which non-reporting expert opinions can be shielded from any pre-testimony disclosure are gone.
Douglas J. Pepe is a partner at Gregory P. Joseph Law Offices LLC in New York City.