Proposed Amendments to Federal Rules Would Limit Expert Witness Disclosures

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.

The Current Rule

The current version of Federal Rule of Civil Procedure 26(a)(2) requires that civil litigants disclose to each other the identity of any witness who may be used at trial to present evidence under the evidentiary rules applicable to expert testimony. A written report must accompany the disclosure for: 1) experts who are retained or specially employed to provide expert testimony in the case; or 2) an employee of the party whose duties as such regularly involve providing expert testimony. Fed. R. Civ. P. 26(a)(2)(B). The expert's report must contain a complete statement of all opinions he or she will express; the basis and reasons for the opinions; the data or other information the expert considered to form such opinions; any exhibits the expert will use to summarize or support the opinions; and his or her qualifications, compensation and prior testimony. Id.

The required disclosure of “data or other information considered by the expert” generally includes disclosure of information that would otherwise be protected by the attorney-client privilege and/or the attorney work product doctrine ' whether or not the expert actually relied upon the information in forming the opinion. The majority view is that Rule 26 “requires disclosure of all information provided to testifying experts,” including privileged or protected documents. Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006).

Court Interpretations

In fact, courts have gone so far as to interpret the rule to mean that even inadvertent disclosure of core work product may constitute waiver and thus require disclosure. In In re Vioxx Products Liability Litigation, MDL No. 1657, 2007 WL 1558700 (E.D. La. May 30, 2007), two experts were provided with a copy of a “detailed litigation strategy outline,” which discussed “scientific issues in the case.” The plaintiff's attorney sought to compel return of the outline and both of the experts alleged that they did not have a specific recollection of having reviewed it. Although the court was asked to carve out an exception for inadvertent disclosures of “core work product,” the court recognized that Fed. R. Civ. P. 26(a)(2)(B) supports waiver as to materials provided to testifying experts and held that the outline could be used in examining the two experts to whom it had been disclosed. Id.

The proposed amendments to Rule 26 would limit the scope of required expert witness disclosures that are currently allowed under the rules. Three proposals are of particular significance.

The Three Proposals

The first of the proposed amendments would extend the protection of the work product doctrine to all drafts of expert reports and disclosures equally to all Rule 26 witnesses. If implemented, the rule will encourage expert witnesses to memorialize their thoughts and opinions freely without having to fear that evidence of their evolving mental impressions about the case will be accessible to, and used against them by, the party opponent.

Second, the proposed addition of subsection (b)(4)(C) would protect communications between an attorney and a testifying expert, whether written, oral, or otherwise, unless the communications: 1) relate to the expert's compensation; 2) “[i]dentify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed;” or 3) “[i]dentify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.” If implemented, the rule will enable an attorney to assert the work product doctrine confidently to prevent disclosure of her theories and/or mental impressions concerning the litigation discussed with the expert.

Certain states already offer such protections. California courts, for example, have consistently held that waiver of the work product doctrine occurs only where the attorney voluntarily discloses her impressions and opinions to someone who has no interest in maintaining the confidentiality of the contents of the writing. BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240, 1261. The rationale offered by California courts is that such disclosure would be “wholly inconsistent with the purpose of the privilege.” Laguna Beach Co. Water Dist. V. Sup. Ct. (Woodhouse) (2004), 124 CA4th 1453, 1459. California courts have recognized that the work product doctrine protects information against opposing parties and not “against all others outside a particular confidential relationship, in order to encourage effective trial preparation.” BP Alaska Exploration, supra, 199 Cal.App. 3d at 1256. The proposed subsection (b)(4)(C) seeks to align rule 26 with the inherent purpose of the work product doctrine. If implemented, the result of the proposed addition will be to preclude the disruptive notion that all materials disclosed to the testifying expert are discoverable.

Third, subdivision (a)(2)(C), if added, would effectively carve out a new category of expert witnesses by requiring minimal disclosures regarding the opinions to be offered by expert witnesses who are not required to provide reports under Fed. R. Civ. P. 26(a)(2)(B). A witness who is not required to provide a report could testify as either a fact witness or an expert. One such example is a party's in-house employee, who is not in the business of offering expert testimony. The party, and not the witness, would have to disclose the subject matter of the witness's testimony and a summary of facts and opinions on which the witness would offer testimony. Communications between the party's attorney and the witness would bar inquiry into disclosures made to the witness. The likely outcome of the amendment would preclude the opponent's argument that attorney-client privilege and work product objections are waived at the point of designation of the in-house employee as an expert witness.

The proposed amendments to Rule 26 would dramatically increase the protections offered by the attorney-client privilege and the attorney work product doctrine to expert witness disclosures. Their implementation would constitute an important step towards eliminating the need for attorneys to engage “consulting experts” and to establish protocols for communicating with their experts to assure that privileged communications and attorney work product are not disclosed. Similarly, a party's attorney would not have to concern herself with the title under which her client's in-house employee would offer his testimony. Notably, the proposed amendments would likely result in a significant reduction of costly discovery disputes over the production of marginally relevant material, allowing both the court and the litigants to refocus their efforts on the actual merits of the case.

Daniel J. Herling, a member of this newsletter's Board of Editors, testified on Feb. 2, 2009 before the Committee in favor of the proposed amendment. He is a partner in Keller and Hechtman's Washington, DC, office. Leyla Mujkic is an associate at the firm's San Francisco office. Hesham M. Sharawy is an associate at the Washington, DC, office.

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.

The Current Rule

The current version of Federal Rule of Civil Procedure 26(a)(2) requires that civil litigants disclose to each other the identity of any witness who may be used at trial to present evidence under the evidentiary rules applicable to expert testimony. A written report must accompany the disclosure for: 1) experts who are retained or specially employed to provide expert testimony in the case; or 2) an employee of the party whose duties as such regularly involve providing expert testimony. Fed. R. Civ. P. 26(a)(2)(B). The expert's report must contain a complete statement of all opinions he or she will express; the basis and reasons for the opinions; the data or other information the expert considered to form such opinions; any exhibits the expert will use to summarize or support the opinions; and his or her qualifications, compensation and prior testimony. Id.

The required disclosure of “data or other information considered by the expert” generally includes disclosure of information that would otherwise be protected by the attorney-client privilege and/or the attorney work product doctrine ' whether or not the expert actually relied upon the information in forming the opinion. The majority view is that Rule 26 “requires disclosure of all information provided to testifying experts,” including privileged or protected documents. Regional Airport Auth. v. LFG, LLC , 460 F.3d 697, 715 (6th Cir. 2006).

Court Interpretations

In fact, courts have gone so far as to interpret the rule to mean that even inadvertent disclosure of core work product may constitute waiver and thus require disclosure. In In re Vioxx Products Liability Litigation, MDL No. 1657, 2007 WL 1558700 (E.D. La. May 30, 2007), two experts were provided with a copy of a “detailed litigation strategy outline,” which discussed “scientific issues in the case.” The plaintiff's attorney sought to compel return of the outline and both of the experts alleged that they did not have a specific recollection of having reviewed it. Although the court was asked to carve out an exception for inadvertent disclosures of “core work product,” the court recognized that Fed. R. Civ. P. 26(a)(2)(B) supports waiver as to materials provided to testifying experts and held that the outline could be used in examining the two experts to whom it had been disclosed. Id.

The proposed amendments to Rule 26 would limit the scope of required expert witness disclosures that are currently allowed under the rules. Three proposals are of particular significance.

The Three Proposals

The first of the proposed amendments would extend the protection of the work product doctrine to all drafts of expert reports and disclosures equally to all Rule 26 witnesses. If implemented, the rule will encourage expert witnesses to memorialize their thoughts and opinions freely without having to fear that evidence of their evolving mental impressions about the case will be accessible to, and used against them by, the party opponent.

Second, the proposed addition of subsection (b)(4)(C) would protect communications between an attorney and a testifying expert, whether written, oral, or otherwise, unless the communications: 1) relate to the expert's compensation; 2) “[i]dentify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed;” or 3) “[i]dentify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.” If implemented, the rule will enable an attorney to assert the work product doctrine confidently to prevent disclosure of her theories and/or mental impressions concerning the litigation discussed with the expert.

Certain states already offer such protections. California courts, for example, have consistently held that waiver of the work product doctrine occurs only where the attorney voluntarily discloses her impressions and opinions to someone who has no interest in maintaining the confidentiality of the contents of the writing. BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240, 1261. The rationale offered by California courts is that such disclosure would be “wholly inconsistent with the purpose of the privilege.” Laguna Beach Co. Water Dist. V. Sup. Ct. (Woodhouse) (2004), 124 CA4th 1453, 1459. California courts have recognized that the work product doctrine protects information against opposing parties and not “against all others outside a particular confidential relationship, in order to encourage effective trial preparation.” BP Alaska Exploration, supra, 199 Cal.App. 3d at 1256. The proposed subsection (b)(4)(C) seeks to align rule 26 with the inherent purpose of the work product doctrine. If implemented, the result of the proposed addition will be to preclude the disruptive notion that all materials disclosed to the testifying expert are discoverable.

Third, subdivision (a)(2)(C), if added, would effectively carve out a new category of expert witnesses by requiring minimal disclosures regarding the opinions to be offered by expert witnesses who are not required to provide reports under Fed. R. Civ. P. 26(a)(2)(B). A witness who is not required to provide a report could testify as either a fact witness or an expert. One such example is a party's in-house employee, who is not in the business of offering expert testimony. The party, and not the witness, would have to disclose the subject matter of the witness's testimony and a summary of facts and opinions on which the witness would offer testimony. Communications between the party's attorney and the witness would bar inquiry into disclosures made to the witness. The likely outcome of the amendment would preclude the opponent's argument that attorney-client privilege and work product objections are waived at the point of designation of the in-house employee as an expert witness.

The proposed amendments to Rule 26 would dramatically increase the protections offered by the attorney-client privilege and the attorney work product doctrine to expert witness disclosures. Their implementation would constitute an important step towards eliminating the need for attorneys to engage “consulting experts” and to establish protocols for communicating with their experts to assure that privileged communications and attorney work product are not disclosed. Similarly, a party's attorney would not have to concern herself with the title under which her client's in-house employee would offer his testimony. Notably, the proposed amendments would likely result in a significant reduction of costly discovery disputes over the production of marginally relevant material, allowing both the court and the litigants to refocus their efforts on the actual merits of the case.

Daniel J. Herling, a member of this newsletter's Board of Editors, testified on Feb. 2, 2009 before the Committee in favor of the proposed amendment. He is a partner in Keller and Hechtman's Washington, DC, office. Leyla Mujkic is an associate at the firm's San Francisco office. Hesham M. Sharawy is an associate at the Washington, DC, office.