Jan 23

Amended Expert Discovery: One Year Later, Has Anything Changed?

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Amendments to Federal Rule of Civil Procedure 26, effective as of Dec. 1, 2010, promised to dramatically restrict the discoverability of materials related to work performed by a party’s testifying experts. An express purpose of the amended Rule 26 was to “alter the outcome in cases that … require[d] disclosure of all attorney-expert communications and draft reports.” Fed. R. Civ. P. 26 advisory committee’s note, 2010 amendment. Accordingly, with limited exceptions, amended Rule 26 grants work product protection to draft reports prepared by testifying experts, as well as to communications between a party’s attorney and a testifying expert.
But one year after the amended Rule 26 took effect, has the landscape of expert discovery truly changed?
IMPETUS FOR AMENDMENT
Old Rule 26(a)(2) required a retained testifying expert’s report to contain all of “the data or other information considered by the witness” in forming his or her expert opinion. As a result, prior to the Dec. 1, 2010, amendments, draft expert reports, and attorney-expert communications were unquestionably fair game for discovery by an opposing party. As one court explained, under the old Rule 26, “documents and information disclosed to a testifying expert in connection with his testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report.” In re Pioneer Hi-Bred Int’l Inc., 238 F.3d 1370, 1375 (Fed.Cir. 2001).
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