For the last 17 years, this sort of talk has been commonplace for lawyers and clients working with testifying experts in federal court cases. But that changed at the end of 2010. A new Federal Rule of Civil Procedure 26 went into effect December 1, 2010, and it brought significant changes to the treatment of communications with experts and to draft expert reports.
Draft reports from testifying experts are now subject to work product protection. The new Rule 26 also confers work product protection on communications between lawyers and experts. But, it carves out three exceptions to that work product protection, and those exceptions may create as many problems as are solved by the work product protection conferred on the other communications.
Finally, the new Rule 26 tightened a loophole that previously only required parties to designate experts who are not specially retained – i.e., hybrid fact/expert witnesses, occasionally called “treating physician-type experts” – but not to produce a written report that sets forth their opinions. The new Rule 26 did not completely close the loophole because it did not require hybrid fact/expert witnesses to produce a full-blown report meeting the stringent requirements of Rule 26(a)(2). But it does require the party offering such testimony to produce a statement of the witness’ opinions. This statement is a watered-down version of the Rule 26(a)(2) report.
A Brief History Lesson
Historical context is critical to understanding any changes to the Federal Rules, and the changes coming this December are no exception. This history is more than passing interest. The rules spur motion practice; anecdotal evidence suggests that motion practice is very common in disputes about expert discovery. That motion practice obviously involves resort to case law, and many cases that address these issues are outdated not just by the new changes to the rules but by previous changes. Many judges know the older rules but may not be as up-to-date on the changes. Accordingly, it is necessary to be aware of the major changes to the rule throughout the last 40 years.
Expert discovery generally was off limits before 1970, with experts and their materials being deemed protected work product. The rules changed in 1970, with the addition of subsection (b)(4) to Rule 26, which allowed some discovery from testifying experts when it eliminated some privilege objections. The discovery that those changes allowed generally was limited to interrogatories. The 1970 changes did not force experts to produce reports, and their files were still considered work product. There was no clarity on whether expert depositions would be allowed. Depositions gradually became more common starting in 1970, however, and by 1993, they were the norm. The deposition of an opponent’s expert was not a procedural right, however. Either a stipulation or a court order was required.
The next sea-change came in 1993. That year saw the addition of Rule 26(a)(2)(B), which required parties to produce a written report for all specially retained testifying experts, outlining their opinions and the “data or other information considered by the witness in forming them.” Lest there be any doubt, the Advisory Committee stressed that the materials that experts relied on in forming their opinions no longer could be protected by work product privilege:
The [expert] report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. Given this obligation of disclosure, litigants should no longer be able to argue that material furnished to their experts to be used in forming their opinions – whether or not ultimately relied upon by the expert – are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.
The revised 26(b)(4)(a) officially allowed depositions of expert witnesses without the need for consent or a court order. The Advisory Committee explained that the rules finally had caught up to standard practice: “[E]xperts who are expected to be witnesses will be subject to deposition prior to trial, conforming the norm stated in the rule to the actual practice followed in most courts, in which depositions of experts have become standard.” The 1993 revisions only allowed expert depositions after the expert’s report was served. The Committee thought that this timing requirement would shorten expert depositions and, in many cases, obviate them. But the opposite happened. Expert depositions became more common and longer.
Lawyers always try to exploit rules changes, and the 1993 revisions were no exception. It became commonplace to seek drafts of the other side’s experts’ reports. Lawyers tried to identify changes between the drafts and the final reports and then argue that the lawyers – not the experts – directed the changes. Lawyers also sought discovery of all communications between the lawyer and the expert to try to develop an argument that the lawyer improperly molded the expert’s opinions.
Of course, for every action there is an equal and opposite reaction. No sooner had it become standard to seek communications between lawyers and experts and to seek drafts of expert reports than lawyers limited their communications with experts to verbal ones only (either in person or by telephone). Lawyers also instructed their experts not to save drafts of their reports – thereby preventing discovery. In its comments on the December 2010 revisions, the Advisory Committee described some of the abuses that resulted from the 1993 revisions:
The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports have had undesirable effects. Costs have risen. Attorneys may employ two sets of experts – one for purposes of consultation and another to testify at trial – because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses. At the same time, attorneys often felt compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work.
The 2010 amendments to Rule 26 make three significant changes.
First, draft expert reports and communications between experts and lawyers (with certain defined exceptions) will be deemed work product. Revised Rule 26(b)(4)(B) creates the work product protection for draft expert reports. The format or medium of the draft expert report is irrelevant. The work-product protection extends to the draft reports “regardless of the form in which the draft is recorded”.
Revised Rule 26(b)(4)(C) creates the work-product protection for communications between lawyers and experts. Again, there are certain defined exceptions. It only excepts communications that 1) “relate to compensation for the expert’s study or testimony”; 2) “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed”; or 3) “identify assumptions that the party’s attorney provided that the expert relied on in forming the opinions to be expressed.”
Second, the revised Rule 26(a)(2) closes a loophole that previously allowed some experts – those who were not specially retained and whose ordinary job duties did not involve giving expert testimony – to avoid the expert report requirement. Revised Rule 26(a)(2)(C) still exempts a party intending to offer testimony from a non-specially-retained expert from producing a report that conforms to the stringent requirements of a Rule 26(a)(2)(B) report. But, that party (N.B., the “party” – not the expert) must submit a disclosure with “the subject matter on which the witness is expected to present evidence” and “a summary of the facts and opinions to which the witness is expected to testify.
Third, the new Rule 26 will only require the expert report to identify “facts” that the expert considered in forming the opinions. The 1993 revisions required the expert’s report to identify a much broader scope of “other information” considered by the witness in forming the opinions.
There are rules, and there are laws. One law that never seems to change is the law of unintended consequences. Most prior revisions to the Federal Rules of Civil Procedure have resulted in unintended consequences, and this set of revisions almost certainly will bring some unintended consequences. The imposition of work product protection on communications between lawyers and experts obviously is intended to reduce discovery disputes in which one party seeks the communications between the other party’s lawyer and its expert. But the exceptions to the work product protection may thwart the intent to reduce those disputes. Instead, the result may be that the source of the dispute merely shifts. Now, lawyers will fight over whether a particular lawyer-expert communication relates to facts or not.
One early effect of the new rules will be an expansion of privilege logs due to the fact that a greater volume of material will be subject to a claim of work product privilege. Of course, more privilege logs mean more claims of privilege to dispute.
It may very well be that the 2010 revisions create as many disputes as they resolve, but only time will tell.