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Expert Testimony and the Changes to FRCP Rule 26

By Bruce S. Schaeffer and Henry Chan
September 28, 2010

Federal rules will soon be changing to apply the work-product protections of Federal Rules of Civil Procedure Rule 26(3)(A) and (B) to experts' draft reports and expert-attorney communications. According to the report that led to these rule changes (“Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States”), this means such documents will no longer be discoverable except for:

  • those that relate to the expert's compensation;
  • facts and data provided by counsel that the expert considered; and
  • assumptions provided by counsel that the expert considered.

The amendments will be effective Dec. 1, 2010, pursuant to ratification of the proposals by the U.S. Supreme Court on July 15, 2010; however, care must be taken because the changes will not be applied retroactively. Thus, it may be wise for counsel to request discovery delays in the next few months to give their experts the protection of the upcoming changes.

The report notes that expert testimony has become critical to the litigation process and that the new rules will eliminate the “tortuous” procedures experts had to take to avoid preparing draft reports, taking notes, or making records of preliminary opinions.

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