Last December, long-awaited amendments to Federal Rule of Civil Procedure 26 governing expert discovery went into effect.1 Although the changes expanded protections for attorney-client communications and attorney work product, they also created several procedural traps for unwary attorneys.
Designed to reduce the costs of expert discovery and allow more open communication between attorneys and experts, the amendments apply to all pending federal cases to the extent “just and practicable.”2 Although not sweeping, the rules add new requirements that must be followed when offering certain types of expert testimony in a federal trial.3
Attorneys who take advantage of these changes—and watch out for the pitfalls—will be able to streamline communications with experts, present cases and questions to their experts more directly, and eliminate the awkward dance that often takes place between attorneys and experts when developing case theories and preparing opinions.
One area affected by the amendments is the discovery of attorney work product. Under the old rule, many courts held that work product given to an expert witness was discoverable as “data and other information” relied on by the expert in arriving at an opinion.4 Attorneys would often go to great lengths to avoid providing protected information. Similarly, experts would sometimes refuse to communicate with attorneys by e-mail for fear that such communications might lead to a subpoena requesting the contents of personal computers and e-mail accounts.
The amendments changed the scope of discovery, limiting it to “facts or data . . . considered” by the expert, communications about compensation, and any assumptions made by an attorney on which the expert relies.5 Attorney work product provided to experts is excluded.6 Rule 26 now explicitly precludes discovery of draft expert reports,7 as well as communications between experts and attorneys.8 Strategy, last-minute thoughts, expected deposition questions, and other communications are all protected unless the information forms the foundation of an opinion.
For instance, if you provide the results of a metallurgical test to a product design expert so that he or she may consider the design implications of using the given material, the communication will be discoverable. But you are free to discuss alternative materials and designs and other information about the case without concern of disclosure, unless your expert relies on a fact, assumption, basis, or conclusion that you provide.
Sometimes discovery is unavoidable. In automotive crashworthiness cases, for example, a common issue is the vehicle speed. Seat belts, air bags, and other components may be expected to protect occupants in a 55-mph crash but offer less protection at 95 mph. As the expert prepares a report that will ultimately be offered to establish that the component should not have failed in a 55-mph accident, you might ask the expert to assume the speed; base it on factual testimony, if available; or rely on the report of an accident reconstruction expert. In each situation, the source of the expert’s knowledge will be discoverable.
Like the old rule, Rule 26(a)(2)(B) requires parties to provide each other with reports created by the experts they retain to testify. However, the new rule adds a requirement for experts who are not “retained or specially employed to provide expert testimony in the case.” Attorneys must disclose the subject of the witness’s expected testimony and “a summary of the facts and opinions to which the witness is expected to testify.”9
The advisory committee notes indicate that this provision primarily contemplates treating physicians, to whom plaintiffs likely have some access, and explain that the rule requires disclosures that are “considerably less extensive than the report required by Rule 26(a)(2)(B).”10 The notes explain that these disclosures should include the factual predicate for opinions given by experts who provide a hybrid of fact and expert testimony.11 But the committee cautions courts to “take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.”12
The implications of this rule extend beyond treating physicians, however. Part (a)(2)(B) requires a complete report for witnesses “whose duties as the party’s employee regularly involve giving expert testimony.” These would include employees who are routinely designated as corporate representatives under Rule 30(B)(6) and who should be required to provide complete expert reports if defendants wish to use them as in-house experts. Where the employee does not regularly give testimony, a defendant can omit a lengthy report prepared by a professional expert at significant expense in favor of a summary report prepared by counsel for an employee who is being groomed to testify. Attorneys should be on the lookout because a defendant might attempt to mischaracterize the extent of the employee’s role as a witness to avoid the reporting requirement.
Practitioners should take care to include reports for both retained and nonretained experts in stipulated scheduling orders to avoid a surprise expert whose disclosure comes 90 days before trial pursuant to the rule.13 If an opposing party chooses to rely on the testimony of an in-house expert and no agreement on the disclosure of such testimony is reached, you may have to wait until 90 days before trial to get your first glimpse of the opposing party’s defense.
There is nothing preventing you from using this new requirement to your client’s advantage as well. When you need expert medical testimony, consider forgoing retained experts in favor of a treating physician who will need to prepare only a summary report. This tactic is particularly helpful, not to mention cost-effective, when you expect the treating physician to provide favorable testimony. Finally, note that even if an attorney does not file a summary disclosure for a treating physician, that physician can still be called to testify to “their treatment as disclosed in the medical records and to opinions formed in the course of the treatment provided by them.”14
Change Is good
The rule changes promote efficiency and cost savings. Take advantage of these benefits by communicating with your experts at the outset of the case. Send them letters with detailed instructions on what you want them to analyze in their reports and keep them updated with your latest thoughts and concerns.
Review their draft reports well ahead of disclosure deadlines. These are protected, so you have no excuse if you later discover a surprise or mistake in a final report. Work with experts to clean these up long before they are sent to opposing counsel.
Take basic precautions to protect your information. Provide discoverable materials to experts separately, rather than hidden deep within e-mail messages laden with work product, and mark nondiscoverable work product as confidential. Ask experts to keep a list of materials they have reviewed and relied on in preparing their reports.
Review any stipulated orders or scheduling orders that pertain to expert disclosure deadlines—both in pending and in future cases—to ensure that they don’t permit the opposing party to delay the filing of reports from nonretained experts or employees who don’t routinely testify. When seeking the production of original materials at deposition, update your deposition notices and discovery requests so that they seek the categories of materials that are discoverable under the new rule.
One possible strategy that is, admittedly, untested is to forward one expert’s draft report to additional experts that you might be using. For example, if there is interplay between the opinions of a metallurgical expert and a design expert, each of these experts might benefit from reviewing the other’s draft report. But note that if a draft report is “considered by the witness in forming” an expert opinion, it is arguably required to be included in a Rule 26(a)(2)(b) report. Therefore, both experts should be counseled that their report should ultimately rely only on the final reports of other experts to ensure they do not render a draft report discoverable.15
Danger in the details
As is often the case with changes to the federal rules, the altered landscape of the forest has improved, but there is danger among the trees. Plaintiff lawyers should be on guard, especially if a case involves parallel federal and state litigation. State law will govern the state cases and might be in conflict with the federal law discussed in this article.
One particularly difficult issue is whether plaintiff attorneys are required to file summary disclosures for a nonretained expert witness under Rule 26(a)(2)(C) if the witness is an employee of the defendant. This issue grows out of the former rule, which fostered confusion about whether reports were required for witnesses like treating physicians and defendants’ employees.16
The new rule, according to the advisory committee notes, requires summary reports prepared by counsel for these types of witnesses, but only regarding expert opinions and the factual support for these opinions.17 A plaintiff attorney rarely calls a defendant’s employee to elicit expert testimony that does not fit within another evidentiary category for admission. Nevertheless, a cautious practitioner would do one of three things: file a summary disclosure of the witness’s expected testimony, ask the defendant to stipulate that a summary disclosure is not needed, or ensure that there is an alternative evidentiary basis on which the testimony can be entered.18
Another potentially troublesome outcome of the rule changes is more—or more extensive—ex parte meetings between defense attorneys and plaintiffs’ treating physicians. At least one defense attorney has argued that “this amendment should lend additional force to what’s already the majority rule: that state law proceduraly [sic] restrictions on defendants talking to treaters—other than privileges (which are usually waived by a plaintiff’s filing suit)—are inapplicable in federal court.”19
This conclusion is certainly arguable, but lawyers in jurisdictions where there are open questions about ex parte meetings in federal court should consider what effect, if any, the amendments have. They should also determine whether steps can be taken to stay ahead of defense attorneys’ efforts to expand access to plaintiffs’ treating physicians.
The extent of the new protections is also not clear. The rule does not speak to whether communications between two experts are privileged, and it cannot be assumed that all will agree on this point.20 Presuming neither expert relies on information provided by the other and the conference is for brainstorming purposes, the communication should not be within the definition of “facts or data considered by the witness in forming” an opinion such that it must be included in a report.21 Nevertheless, this is not explicitly contemplated by the rule.
Finally, trial preparation materials can still be discovered by an opposing party on a showing of “substantial need.”22 When attorney work product captures evidence that is deteriorating, such as photos of a corroding part or a statement of a witness whose memory is fading, it may become the subject of a motion for production based on substantial need, regardless of the manner in which the work product was created and kept.
At best, the amendments to Rule 26 streamline the process of preparing an expert and developing expert reports; at worst, they trap an inattentive attorney into disclosing information that could have remained confidential. Those pitfalls, however, can be managed, and the amendments offer significant benefits for practitioners who take advantage of them.
- See Fed. R. Civ. P. 26 & advisory comm. nn.
- Sup. Ct. Or. Apr. 28, 2010 (transmitting to Congress proposed 2010 rule amendments); U.S. Cts., Supreme Court Approved Rules and Forms Amendments (Apr. 28, 2010), www.uscourts.gov/RulesAnd Policies/FederalRulemaking/PendingRules/ProposedSupCt1210.aspx; see also Chevron Corp. v. Shefftz, 2010 WL 4985663 at *6 (D. Mass. Dec. 7, 2010).
- Fed. R. Civ. P. 26 advisory comm. n., at 14–15.
- See S. Yuba River Citizens League v. Natl. Marine Fisheries Serv., 257 F.R.D. 607, 612 (E.D. Cal. 2009); but see Regl. Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006).
- Fed. R. Civ. P. 26(b)(4)(C)(i)–(iii).
- Fed. R. Civ. P. 26(a)(2)(B) advisory comm. n., at 15.
- Fed. R. Civ. P. 26(b)(4)(B).
- Fed. R. Civ. P. 26(b)(4)(C).
- Fed. R. Civ. P. 26(a)(2)(C).
- Fed. R. Civ. P. 26(a)(2)(C) advisory comm. n., at 15.
- Id. at 15–16.
- Fed. R. Civ. P. 26(a)(2)(D) (in the absence of a stipulation, disclosures must be made 90 days before trial unless intended solely for rebuttal).
- Crabbs v. Wal-Mart Stores, Inc., 2011 WL 499141 at *3 (S.D. Iowa Feb. 4, 2011).
- There is no case law on this point, so it cannot be said that all courts will read the rule as protecting communications between experts. In one analogous case interpreting the new rule, a Texas district court held that communications between a retained expert required to give a report and a consulting expert were discoverable, but only to the extent that the retained expert relied on them to form his opinions. Natl. W. Life Ins. Co. v. W. Natl. Life Ins. Co., 2011 WL 840976 (W.D. Tex. Mar. 3, 2011).
- See Fed. R. Civ. P. 26(a)(2)(C) advisory comm. n., at 16.
- Expert disclosures are triggered only when testimony is proffered under Fed. R. Evid. 702, 703, or 705; testimony might also be offered as a party admission under Fed. R. Evid. 801(d)(2).
- Drug & Device Law, New Amendment to Rule 26 Concerning Expert Disclosures (Apr. 30, 2010), http://tinyurl.com/2cernqo.
- See Fed. R. Civ. P. 26(b)(4)(C) advisory comm. n., at 19.
- Fed. R. Civ. P. 26(a)(2)(B)(ii).
- Fed. R. Civ. P. 26(b)(3).