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Proposed Amendments to Federal Rules Would Limit Expert Witness Disclosures

By Leyla Mujkic, Hesham M. Sharawy and Daniel J. Herling
June 24, 2009

Rule 26 of the Federal Rules of Civil Procedure incentivizes a party's attorney to get creative in his efforts to prevent disclosure of his communications with the party's expert, while simultaneously encouraging opposing counsel to engage in creative tactics to discover drafts of expert reports and information otherwise protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. The results of the rule have been costly and often lead to the discovery of information that is only marginally relevant to any genuine issue in dispute. For example, parties often utilize not only a testifying expert, but also a “consulting expert” during key phases of trial proceedings on the theory that, because the consulting expert will not be designated to testify at trial, he or she is immune from required disclosures. Seasoned experts refuse to draft any reports, opting only for oral representations out of fear that their draft reports will be discoverable.

In an effort to address these and similar results of the current rule, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed amendments to Rule 26. The proposed amendments seek to extend the attorney-client and attorney-work product protections to attorney-expert communications and to carve out a new category of expert witnesses. This article highlights the major deficiencies with the current rule and discusses how the proposed amendments would redress those deficiencies if enacted.

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