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Proposed Amendments to Rule 26(a)(2) Expand Expert Disclosures, Clarify Work-Product Protections

By Karen L. Stevenson, Litigation News Associate Editor – September 17, 2008

Proposed amendments to Federal Rule of Civil Procedure 26 that clarify expert disclosure obligations and whether attorney-expert communications are work product are now open for public comment.

The key proposed changes include that draft expert reports are no longer discoverable, and counsel must disclose in writing a summary of the facts and opinions to be attested to by experts who are not required to file expert reports. In addition, communications between counsel and retained experts are generally protected from disclosure in discovery.

The amendments specifically extend work-product protections to drafts of both expert reports and expert party disclosures under Rule 26(a)(2)(C), and to attorney-expert communications. The proposal permits three exceptions to work-product protections, allowing routine discovery of attorney-expert communications relating to: compensation, identifying facts or data the attorney provided to the expert and that the expert considered in forming the opinions to be expressed, and identifying the assumptions that the attorney provided to the expert and that the expert relied upon in forming his or her opinions.

The Committee on Rules of Practice and Procedure submitted the preliminary draft of the proposed amendments for public comment in August 2008. Public hearings are scheduled to be held on these and other proposed amendments to Civil Rules in Washington, D.C., on November 17, 2008; in San Antonio, Texas, on January 14, 2009; and in San Francisco, California, on February 2, 2009. Written comments are due by February 17, 2009.

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