New expert discovery rules should reduce litigation costs
Proposed amendments to the Federal Rules of Civil Procedure (FRCP) will likely have a big impact on the attorney-expert relationship. The amendments were approved by the U.S. Supreme Court on April 28, 2010, and submitted to Congress. Unless Congress rejects the amendments (which is unlikely), they’ll take effect on Dec. 1, 2010.
One of the most significant changes is amended Rule 26,which will extend attorney work-product protection to draft reports by testifying experts and, with certain exceptions, to communications between experts and retaining counsel. This is a dramatic departure from the current version of the rule, which is generally interpreted to allow discovery of such drafts and communications.
Needless costs under current rule
In its report to the Supreme Court recommending approval of the amendments, the Judicial Conference observed that, as currently written, Rule 26 has caused attorneys and experts to engage in “artificial and wasteful discovery-avoidance practices,” such as engaging separate consulting and testifying experts and taking “tortuous steps” to avoid expert notes, preliminary analyses or draft reports. The result: additional discovery costs, inefficient use of experts and, in some cases, lower quality work.
At the same time, the report notes, attorneys often take elaborate steps to obtain the other side’s drafts and communications and make a great effort to show how opposing counsel shaped an expert’s opinions. The most effective way to discredit an expert’s opinions, the Judicial Conference found, is to challenge them on the merits through cross-examination and presentation of contradictory evidence.
Amended Rule 26 is designed to avoid needless discovery costs, encourage attorneys and experts to communicate freely, and focus the parties’ discovery efforts on learning the strengths or weaknesses of a testifying expert’s opinions. Also, by eliminating the disadvantages of preparing draft reports, it may improve the quality of experts’ work.
Some critics of the amended rule worry that it will become more difficult for a party to uncover undue influence and, therefore, make it easier for attorneys to influence their experts’ opinions. But the Judicial Conference has found that practitioners’ experience doesn’t support this concern.
3 important exceptions
The Judicial Conference report recognized that, while protecting draft reports and attorney-expert communications serves an important purpose, it’s critical to allow litigants to discover the bases of an expert’s opinion. Therefore, amended Rule 26 will allow discovery of communications between an attorney and testifying expert regarding:
1. Compensation for the expert’s study or testimony,
2. Facts or data provided by the attorney that the expert considered in forming opinions, and
3. Assumptions provided to the expert by the attorney that the expert relied upon in forming an opinion.
The report also notes that, in some cases, parties may be able to overcome work-product protection by showing need or hardship.
FRCP Rule 26(a)(2)(B) requires a party to provide the other side with a written report from any witness “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Under the amended rule, if a witness will provide expert testimony but isn’t required to provide a written report, the attorney relying on that witness must disclose the subject matter and summarize the facts and opinions that the witness is expected to offer.
Keep an eye on state rules
Even though amended Rule 26 will apply only in federal court, some states already have similar rules regarding discovery of expert reports and communications. In addition, states whose rules of procedure are based on the FRCP will likely adopt the new rules as well.