Expert Discovery – FRCP Rule 26(a)(2)(b) Amendment

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-11-16 12:29:26  On December 1, 2010 new amendments to Rule 26 of the Federal Rules of Civil Procedure governing expert witnesses go into effect. Ever since 1993, testifying experts in Federal cases have had to carefully manage all drafts and written communications with counsel in the expectation of having to produce everything to the opposing counsel. This directly contradicts that usual assumption of attorney work product privilege protections and has led to inadvertent waiver and dramatically higher fees. It is just more efficient to send early comments on depositions, questions for fact witnesses and such via email than it is to have to leave a message and then schedule a conference call. Moreover, I would generally not bill for a quick email question while I have to recoup the time for these calls. Most technology savvy experts have had to adapt work practices to minimize the creation of discoverable documents. They will overwrite the same report instead of creating draft versions, read paragraphs over the phone instead of sending early opinions, use Webex to preview demonstratives and generally leverage collaborative technologies that do not actually generate email.So what is changing? The amendment limits disclosures to “facts or data” used by the expert to form opinions. Drafts and attorney communications are now specifically recognized as work product privilege with a couple exceptions. All fee arrangements and payment histories must still be disclosed, which I thoroughly agree with. The court and jury have a right to know how an expert is compensated. The other primary exception covers attorney communications where the attorney provided assumptions that the expert relied on to form opinions, so experts still have to be careful with their early notes. I found a couple good summary blogs by IMS Expert Services and Jim Beck.As eDiscoveryJournal has taken off, I have increasingly declined expert witness engagements in part because of the relatively formal and awkward communication protocols. Experts need to be able to ask hard questions and vette early hypotheses without worrying about those questions coming back at them. Many times, an expert is wears two hats in a matter. First they consult with counsel and even the clients to get all the facts, then they render an opinion. The old rules actually meant that many matters required a separate ‘consulting expert’ whose communications were protected as opposed to the final ‘testifying expert’. These amendments should solve this issue and reduce the overall complexity and cost of engaging experts.