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Proposed Amendments to Federal Rule of Civil Procedure 26

By Jason M. Rudd

Because the 1993 amendments to Federal Rule of Civil Procedure 26 greatly expanded the scope of expert discovery (even if the information is otherwise privileged), litigators have faced a conundrum: If everything they share with their testifying expert will be disclosed, how do they work with their expert without educating their opponents? This quandary significantly chills the free flow of information between counsel and testifying experts, inhibiting effective communication with experts and impairing the effectiveness of expert witnesses in advocacy.


Practitioners consistently complain that Rule 26(a)’s broad mandate to produce all “data or other information” considered by the expert has proven more of a burden than a litigation aid. In September 2009, the U.S. Judicial Conference heeded these complaints and presented the Supreme Court with proposed amendments to Rules 26(a)(2) and 26(b)(4) that limit the disclosure and discovery of information shared with expert witnesses.


The 1993 Amendments to Rule 26(a)(2)
In 1993, Rule 26(a)(2) was amended to greatly expand expert discovery, requiring the disclosure of not only the materials upon which a testifying expert relied, but also all “data or other information considered” by the expert in forming his or her opinion. Changes to Rule 26(a)(2)(B) further prevented the assertion of work-product and attorney-client privileges from protecting this information. The accompanying committee notes explained that these provisions were added to promote the exchange of information, avoid surprise at trial, and aid meaningful cross-examination.


Upon adoption, most courts applied broad interpretations of these expanded expert disclosure requirements. As one commentary noted, “Virtually all federal courts have construed ‘other information considered’ to include facts and data provided by attorneys to their experts, as well as all draft expert reports and all attorney communications with the experts, even if those communications contain attorney work product.”[1] Rule 26(a)’s expanded language, combined with broad judicial application, compelled the disclosure of virtually every scrap of paper, word, and comment shared with a testifying expert witness, together with every expert report revision and draft. In practice, these requirements, while “promoting the exchange of information,” also created many unintended problems for attorneys and testifying experts.


The Impact of Expanded Disclosure
The unfettered discovery into attorney-expert communications and draft reports permitted by the 1993 amendments to Rule 26(a) produced many unintended consequences. Generally, by permitting discovery of virtually everything a testifying witness touches, Rule 26(a) significantly constrains cooperation and communication between attorneys and testifying experts, increases discovery and expert costs, and produces no significant benefit to the litigants. As a result, it’s now more difficult for both attorneys and experts to do their jobs effectively.


The required disclosure of all communications between counsel and testifying experts chills these communications and prevents attorneys from freely consulting with testifying experts about trial strategy, theories of the case, and related discussions that, if disclosed to the opposing side, would reveal key confidential and privileged information. This has forced attorneys to “wall off” testifying experts from any strategy discussions, diminishing the expert’s role on the trial team and limiting the scope and types of preparation allowed with testifying experts. Further, disclosure of all the testifying expert’s notes and drafts discourages experts from developing alternate ideas and theories or engaging in any written or recorded brainstorming activity, for fear that such information could help the opposing side challenge the expert’s final opinions.


Similarly, the disclosure of all drafts and revisions to expert reports discourages attorneys from providing significant comments or revisions, or otherwise participating in the development and drafting of these reports, for fear that the opposing side would glean strategic insight from the attorney’s notes and suggestions. These threats also lead experts and practitioners to seek out creative ways to share information and revise and edit expert reports without creating discoverable trials and records.


To address some of the constraints broad disclosure places on testifying experts, many attorneys employ a set of consulting experts, in addition to their testifying experts, to facilitate the types of strategic discussions and brainstorming they can no longer safely conduct with testifying experts. Of course, employing twice the number of experts dramatically increases litigation costs and presents a potential advantage to well-funded litigants.


The 1993 amendments to Rule 26(a) also increased litigation costs by demanding significant professional time (from both attorneys and experts) to comply with the expanded discovery obligations. The expert discovery permitted by the current Rule 26 generates volumes of responsive information and communications, resulting in significantly longer testifying expert depositions with all sides to litigation facing the high costs of requesting, producing, and digesting this information.


Despite the exhaustive effort dedicated to seeking and producing discovery pursuant to Rule 26(a)(2), practitioners have come to realize that the information obtained is seldom important enough to warrant the effort and cost required to comply with the rule. As a result, it’s common practice for opposing sides to negotiate formal agreements that waive or limit discovery under Rule 26(a)(2) and protect communications with expert witnesses and draft expert reports from discovery. Thus, Rule 26(a)’s requirements so frustrate practitioners that they often agree to “opt out” of the rule to avoid complying with its provisions. Similarly, many courts have adopted local rules and form discovery orders that limit expert disclosures under Rule 26(a), creating inconsistencies in the application of Rule 26(a) among jurisdictions.


The unintended results of the 1993 amendments to Rule 26 have not gone unnoticed. The American Bar Association and other organizations have often recommended amendments to Rule 26 to address these problems by limiting discovery of attorney-expert communications and draft expert reports.[2] The U.S. Judicial Conference has taken the next step by presenting the U.S. Supreme Court with extensive proposed changes that would limit expert witness discovery and address many of Rule 26(a)’s problems.


The Proposed Changes to Rule 26
In 2009, the U.S. Judicial Conference[3] approved amendments to Rule 26(a)(2) and Rule 26(b)(4) designed to address many of the problems surrounding expert disclosure and discovery “that stem from the aftermath of extensive changes adopted in 1993.”[4] These changes are now pending with the U.S. Supreme Court for potential adoption later this year. The U.S. Judicial Conference’s proposed changes to testifying expert discovery under Rule 26 include:


  • Amending Rule 26(a)(2) to limit the information expert witnesses must disclose to the “facts or data considered by the witness in forming” opinions. The revised language is narrower than the current disclosure of all “data or other information” considered in forming an opinion, in an effort to limit disclosure.
  • Amending Rule 26(b)(4) to provide work-product protection to draft reports and attorney-expert communications (subject to three exceptions) to ensure that lawyers may freely interact with experts without disclosing the communications.

 

The amendment to Rule 26(a)(2)(B)(ii) provides for disclosure of all “facts or data considered by the witness in forming” the expert’s opinions, rather than the broader “data or other information” disclosure prescribed in the current rule. Many of the courts requiring disclosure of all attorney-expert communications have relied on a broad interpretation of the phrase “other information” in the current rule. Although the new language is still somewhat vague and open to judicial interpretation, the proposed committee notes explain that the revision of this language “is intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports.” With this guidance, courts should recognize the intent to significantly limit the amount of information expert witnesses are required to disclose.


The proposed amendments to Rule 26 also provide work-product protection against discovery of draft expert reports and attorney-expert communications, and are designed to allow lawyers to work with testifying experts without exposing those communications to discovery. Amended Rule 26(b)(4) specifically expands work-product protection to draft expert reports and attorney-expert communications, subject to three important exceptions that allow discovery of communications relating to:


  • expert compensation,
  • facts and data that the expert considered in forming opinions, and
  • assumptions that the attorney provided and upon which the expert relied in forming his or her opinions.

 

Although the protections provided in the proposed amendments are broad, they are not absolute. The amendments provide that courts may order turnover of draft expert reports and attorney-expert communications if the requesting party establishes a substantial need for the discovery and undue hardship in obtaining equivalent information through alternate means. The committee notes explain that it should be “rare for a party to be able to make such a showing given the broad disclosure and discovery otherwise allowed regarding the expert’s testimony.”


In protecting draft expert reports and attorney-expert communications from discovery in the vast majority of cases, while still requiring testifying experts to disclose the information that forms the basis of their opinions, the amendments to Rule 26 seek a balance between the disclosure necessary for the parties to develop their cases and the burdens and expense of broad discovery obligations. As with any rule change, it’s impossible to predict the full impact of proposed Rule 26 until courts and practitioners put the new provisions into practice; however, the committee notes that accompany the proposed Rule 26 provide specific guidance to ensure much of the information shared between attorneys and expert witnesses is protected from discovery with the express goal of encouraging the free flow of information to allow both experts and attorneys to better perform their important roles.


Implications of the Proposed Changes
The proposed amendments should contribute to the stated goals of fostering communications and cooperation between attorneys and experts by alleviating some of the negative effects of the current Rule 26(a). If the Supreme Court accepts the proposed Rule 26 amendments and Congress doesn’t intervene, the amendments would take effect on December 1, 2010. Pretrial practice with expert witnesses under an amended Rule 26 would likely see some important changes, including:


  • Fewer consulting witnesses. The amended rule allows attorneys more freedom to discuss strategy, theories, and trial preparation with testifying expert witnesses, reducing the need to hire separate consulting witnesses to protect these discussions from production. This will also reduce some expert witness and discovery costs.
  • More tailored expert reports. The amended rule allows attorneys and expert witnesses to work together in revising and editing expert reports without producing the resulting drafts. This will allow closer collaboration on expert reports and result in more refined and persuasive expert reports.
  • Fewer opt-out agreements. Agreements limiting expert discovery to prevent the production of report drafts or communications will be less useful, eliminating the need for many of these agreements.
  • Consistent practice. The proposed rule will eliminate inconsistency among local rules that limit the scope of expert discovery under Rule 26 in some courts, bringing more uniformity to expert discovery practice.

Keywords: Litigation, Federal Rule of Civil Procedure 26, disclosure, testifying experts, 1993 amendments to Federal Rules, trial evidence


Jason M. Rudd is with Diamond McCarthy, LLP, in Houston. He can be reached at jrudd@diamondmccarthy.com.


This article appears in the Spring 2010 issue of Proof, from the Trial Evidence Committee.

 

Endnotes


  1. Eric T. Chaffin, De-Escalate The Expert Discovery Wars, 44-JUN JTLA TRIAL 36 (citing to Emerson Enters., LLC v. Kenneth Crosby-New York, Inc., 2008 WL 141638 at *2 (W.D.N.Y. Jan. 14, 2008) (recognizing that in the Second Circuit “the majority of cases require the disclosure of all materials provided to the expert, including those which fall under the category of ‘core attorney’ work product’”)).
  2. See, i.e., ABA Recommendation [PDF] (adopted by the House of Delegates Aug. 7–8, 2006) (recommending changes to Rule 26(a) to limit expert discovery).
  3. The U.S. Judicial Conference is an administrative body for that develops rules for the federal courts.
  4. Report of the Civil Rules Committee, May 8, 2009, pg. 2.

 

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