Prior to the December 2010 amendments to the Federal Rules of Civil Procedure (“FRCP”), Rule 26 required that a party produce all “data or other information considered by” its testifying experts. This included draft expert reports and notes, as well as communications between testifying experts and counsel. In 2010, in order to “alter the outcome in cases that have relied on [the pre-2010 Rules] requiring disclosure of all attorney-expert communications and draft reports,” FRCP 26(a)(2) and (b)(4) were amended to “provid[e] work-product protection against discovery regarding draft reports and disclosures of attorney-expert communications.” See Advisory Committee Notes on 2010 Amendments to Rule 26.
This was accomplished via three main changes to the rule. First, Rule 26(a)(2)(B) was amended to require disclosure of all “facts or data considered by” the expert in formulating his or her opinion. Although the Advisory Committee characterized this change as “limit[ing]” the disclosure requirements, it also noted that the phrase “‘facts or data’ [should] be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients” and that “the disclosure obligation extends to any facts or data ‘considered’ by the expert in forming the opinions to be expressed, not only those relied upon by the expert.” Id. Although Courts generally agree that the December 2010 amendments are more protective of attorney work-product, the parameters of what constitutes “data or other information” versus “facts and data” is not entirely clear.
The second and third changes to the rule are set forth in two new sections – (b)(4)(B) and (b)(4)(C), which apply the attorney work-product doctrine to protect from disclosure “drafts of any report or disclosure…regardless of the form in which the draft is recorded” and communications between the party’s attorney and any testifying expert witness, regardless of the form of the communication, except that communications reflecting expert compensation, facts or data provided by counsel and considered by the expert and assumptions provided by counsel and relied on by the expert, remain discoverable. Of course, certain questions remain: what exactly constitutes a “draft” expert report? What is the proper procedure for withholding, logging and ultimately challenging the withholding of attorney-expert communications?
Although the December 2010 amendments to Rule 26 may provide additional protections to attorneys and testifying experts, the protections afforded “draft” reports and attorney-expert communications (both predicated on the attorney work-product doctrine) are not without exception. A party may obtain discovery of otherwise protected work-product by making “the showing required in Rule 26(b)(3)(A)(ii) – that the party has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship.” Advisory Committee Notes on 2010 Amendments to Rule 26. Although the Advisory Committee notes that “[i]t will be rare for a party to be able to make such a showing…” prudent attorneys and experts will be mindful of the possibility that their drafts and communications may be disclosed, even if such disclosure is exceptionally rare. Id.
By J. Ronald Ignatuk, Partner at Shulman Bastian Friedman & Bui LLP