Every lawyer who has ever worked with experts knows the rule: everything is discoverable. Except in federal court.
On December 1, 2010, amendments to the Federal Rules of Civil Procedure took effect that limited expert discovery in federal cases. Consequently, attorneys now have much greater latitude to communicate and consult with experts without, as the comment to the rule reads, “fear of exposing those communications to searching discovery.”
In sum, the focus of expert discovery is where it ought to be: on the expert’s opinions and the bases for them. Communications that would ordinarily be protected work product, but for their disclosure to an expert, are off limits, subject to rational exceptions. In addition, drafts of expert reports are protected, leaving the expert free to create as many different report drafts as he likes without fear of being grilled at deposition for two hours over an assumption in an earlier version that proved false.
Federal Rule of Civil Procedure 26(b)(4):
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. 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, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Author(s): Eric P. Hockman