Revision to Federal Rule of Civil Procedure 26 Broadens Work Product Protections for Expert Communications with Attorneys

Dec 13, 2010   

On December 1, 2010, revisions to Federal Rule of Civil Procedure 26 took effect which will have significant implications on the attorney-expert witness relationship. The new changes will limit the amount of expert discovery that is available and should provide for more efficient and cost effective litigation.

Under the former version of Rule 26, experts were required to disclose draft reports and information regarding communications between themselves and the attorney who retained them. The practical effect of the old rule was the development of litigation strategies where experts would consciously avoid sharing drafts of their opinions with counsel and the frequent use of two experts, a testifying expert who would share limited information with counsel and a consulting expert who would be used to provide much needed expert analysis while preparing for trial.

With the changes to Rule 26, draft reports of expert witnesses will no longer be discoverable and will be protected under the work product doctrine. Additionally, communications between counsel and the expert witness will be protected expect for communications that: 1) relate to compensation for the experts study or testimony; 2) identify facts or data that the partys attorney provided and that the expert considered in forming the opinions to be expressed; or 3) identify assumptions that the partys attorney provided and that the expert relied on in forming the opinions to be expressed. The rule also provides that if an expert is not providing a report, but testifying at trial, then the attorney must disclose the facts and opinions to which the expert is expected to testify.

This practical rule change of extending the work product privilege to expert reports and communications should result in reduced costs and more effective and efficient litigation. The attorneys at Fuerst Ittleman have a deep understanding of the mechanics of complex litigation and they can apply that knowledge to a variety of complex litigation cases. Fuerst Ittleman has built a reputation for getting results in wide variety of complex litigation cases in federal, state, local, and appellate courts. Contact a complex litigation attorney from Fuerst Ittleman at