As any litigator is well aware, Rule 26 of the Federal Rules of Civil Procedure (FRCP) governs the disclosure of expert witness testimony during the discovery stage of litigation. But in 2010, significant amendments were made to the rule. These new changes were designed to address some practical problems from a 1993 amendment that had allowed for broad discovery of attorney-expert materials. Based on the court’s interpretation that nearly any item related to an expert’s opinion was discoverable, attorneys often went to exhaustive lengths to protect attorney-expert materials. As a result, the discovery process became long and overly tedious. So in 2010, remedy came to Rule 26 in the form of greater protections for drafts of the expert’s opinion and the communications between an attorney and an expert.
But in the years since this most recent amendment, federal courts have come to slightly differing opinions on the extent of these protections with respect to expert materials. To remain at the top of your game, it is crucial to be familiar with the evolution of FRCP Rule 26 and the impact it can have on expert witness testimony admissibility. In this guide, you’ll brush up on the nuances of recent case law and ensure your preparedness for a smooth discovery process when working with an expert.
Changes to Discoverable Areas
One major change to Rule 26 served to specify the types of expert-related information considered to be discoverable. The 1993 version defined discoverable items as including, “the data or other information considered by the witness in forming the expert opinions.” In 2010, this was changed to, “the facts or data considered by the witness in forming the expert opinions”. In notes from the FRCP Advisory Committee, this change was deemed necessary after feedback indicated that “routine discovery into attorney-expert communications and draft reports has had undesirable effects.”
In practice, these “undesirable effects” referred to attorneys going to great lengths to guard their draft reports and communications with experts. In many instances, attorneys dealt with a dual set of experts—one for consulting and one for testifying. This was to avoid disclosing the “core” or “opinion” work product substance of meetings with consulting experts. As a result, litigants who could not afford dual experts were unfairly disadvantaged. In other circumstances, attorneys abstained from taking notes at all, compromising the quality of the attorney’s work and communications with experts. Consequently, experts felt pressured working under these restricted conditions and often impeded the expert’s process in forming a well-developed, thorough, and sophisticated opinion.
Non-Retained Expert Requirements
A second change to Rule 26 was the creation of a wholly new subsection: Rule 26(a)(2)(C). This new addition was designed to clarify disclosures expected of non-retained experts who were not required to submit a formal report to the court. In lieu of a written report, Rule 26(a)(2)(C) stipulates that a non-retained expert’s disclosure must describe the subject matter they expect to present as evidence under Federal Rule of Evidence 702, 703, or 705. They must also include a summary of the facts and opinions on which they plan to testify.
Common examples of these non-retained experts include the treating physicians in the case, a party’s accountants, an owner of a business, or a human resources employee opining on employee lay-offs. Under this new provision, these kinds of expert witnesses are generally not required to provide a written expert report. Some courts, however, still require one.
The addition of Rule 26(a)(2)(C) was intended to make a few distinctions for non-retained experts. Since these are experts with personal, close connections to the case, the new subsection relieved them from including the specific facts or data on which their testimony is based. It doesn’t, however, provide the same protections for attorney work-product as with retained experts. The Advisory Committee noted that, ““[t]he rule provides no protection for communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C).”
Protection for Drafts
Rule 26(b)(4) also saw significant changes. In a new section, Rule 26(b)(4)(B), protections were laid out for draft reports or disclosures. Under this section, Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form of the draft. The work product protection for draft reports applies “regardless of the form of the draft, whether oral, written, electronic, or otherwise.” Any drafts of supplements to a report are also protected.
26(b)(4)(C) was another new addition, outlining trial preparation protection for communications between party’s attorney and expert witnesses. Under this section, Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications. Exceptions to this rule include communications related to compensation for the expert’s study or testimony. Also exempt from protection are communications containing facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed, or assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
Paragraphs (B) and (C) to Rule 26(b)( 4 ) also apply to “all forms of discovery” with respect to expert materials and not just depositions. However, as the Advisory Committee points out, Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. Communications the expert had with anyone besides the attorney are also discoverable. In addition, attorneys are free to question expert witnesses about alternative testing methods, trials, or approaches to the issues on which they are testifying, whether or not they were considered by the expert in forming the opinions offered in the testimony.
Know Your Jurisdiction
Under Rule 26(b)(4)(D), protections are also awarded to experts employed only for trial preparation. Ordinarily, a party may not discover facts or opinions held by a consulting expert, except for in exceptional circumstances. A consulting expert’s communications become discoverable as provided in Rule 35(b) or if it is impracticable for the party to obtain facts or opinions on the same subject by any other means.
However, in states like North Carolina, parties may obtain consulting expert disclosures in the form of interrogatory answer drafts. The rule specifically notes that a party “ordinarily may not,” do so, but this does leave room for discoverability. In your own case preparations, be sure to check the local jurisdiction’s rules with respect to interrogatories.
In another exception example, under New York Civil Practice Law and Rules, Section 3101(d)(1)(iii), expert depositions and interrogatories are not generally permitted. This may only be achieved through a showing of special circumstances.
Be Prepared for In Camera Reviews
Pursuant to a discovery motion to compel information about an expert’s offered testimony, it is common practice for courts to hold in camera hearings. These are typically held outside the presence of opposing counsel and jury to determine whether the information sought warrants protection under the rules. Additionally, this is the opportunity to highlight why the communications sought would expose the kind of attorney work-product the rules are designed to protect.
Final Thoughts
Since the 2010 amendments to FRCP Rule 26, there has been guidance for the outstanding questions of interpretation—making this an area slightly lacking in jurisprudence. Subtle differences in interpretation exist across district courts as well as major differences among jurisdictions on the state level. This is an area of case law every savvy attorney should watch closely.
