December 2010

Amendments to the Federal Rules Concerning Expert Disclosure Take Effect

Holland & Knight Newsletter
Sarah G. Passeri

Expert witnesses have always played a significant role in aviation cases of any sophistication. Significant amendments to the Federal Rules that govern expert testimony and disclosure in federal court cases took effect on December 1, 2010. The new rules provide greater protection to: (1) the preliminary opinions and drafts of testifying experts; and (2) their conversations with counsel.

The reason for the revisions was the tendency of courts to authorize the disclosure of all draft reports and communications between counsel and expert witnesses, including an attorney’s confidential case analysis. Attorneys have complained of the undesirable effect that this broad disclosure has had on their relationship with testifying experts, as the guarded approach taken by both the testifying experts and attorneys has reportedly impeded the effectiveness of their communication and interfered with their work. In an attempt to remedy this problem, many attorneys have retained two sets of experts – one for consulting purposes and one for trial purposes. The result: increased cost and less effective work.

The Revised Rules

Notably, under revised Rule 26(a)(2)(B), the written report of a testifying expert need disclose only “facts or data” considered in forming an opinion. This standard will replace the prior standard of “facts or other information.” The rewording is meant to obviate the disclosure of any theories or mental impressions voiced by counsel. However, the Advisory Committee notes that “facts or data” is still intended to have a broad interpretation, which includes “any material considered by the expert, from whatever source, that contains factual ingredients.”

Rule 26(b)(4)(B) has been added in order to provide work-product protection for drafts of testifying expert reports or disclosures, regardless of the form in which the draft is recorded, whether written, electronic, or otherwise.

Rule 26(b)(4)(C) provides work-product protection for communications between an attorney and a testifying expert, except for communications concerning: (1) expert compensation; (2) facts or data provided by the attorney that the expert considered in forming opinions; and (3) assumptions provided to the expert by the attorney that the expert relied upon in forming an opinion. The second exception echoes the rewording of 26(a)(2)(B) with the inclusion of “facts and data,” which seems to indicate a narrower scope of potentially discoverable information. The Advisory Committee notes that this second exception applies only to communications “identifying” facts or data provided by the attorney, and that further communications regarding the potential relevance of those facts or data are protected. The third exception appears to be limited to assumptions that the expert actually relied upon. General discussions exploring alternative scenarios and hypothetical situations fall outside this exception.

Discovery of information or communications outside these three named exceptions or discovery of draft disclosures and reports by testifying experts is expressly prohibited, barring a showing by the party seeking disclosure that “that party has substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship.” This limited exception was also applicable under the former rules, but rarely applied. The Advisory Committee noted that “it will be rare for a party to make such a showing given the broad disclosure and discovery otherwise allowed regarding the expert’s testimony.” Moreover, the Committee notes that “in the rare case that a party does make this showing the court must protect against disclosure of the attorney’s mental impressions, conclusions, opinions, or legal theories.” This limitation will preclude the otherwise broad disclosure of an attorney’s core work product, i.e., mental impressions, case strategy and analysis, which has been allowed up to this point by the majority of courts.

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