The Amendments to Rule 26 of the Federal Rules of Civil Procedure: Enhancing Communications Between Attorneys and Experts
By Michael A. Garcia, CPA, CFF, Esq., Senior Associate - Advisory Services
Purpose of the Amendments
According to the Committee, "many courts read the disclosure provisions [of the existing Rule 26] to authorize discovery of all communications between counsel and expert witnesses and all draft reports."(3) This interpretation has created, what the Committee refers to as, "undesirable effects" - i.e. increased litigation costs and impediments to robust communication between attorneys and testifying experts. As explained by the Committee, litigation costs have increased because attorneys have retained two sets of experts - one designated as a consultant (whose work product and communications with attorneys are non-discoverable under the existing Rule 26) and the other designated as the testifying expert (whose work product and communications are fully discoverable under the existing Rule 26).(4) The Committee goes on to explain that communications between counsel and the testifying expert is inhibited because "attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and [testifying] experts adopt strategies that protect against discovery but also interfere with their work."(5)
In agreement with the Committee, other commentators have stated that the broad discovery of testifying experts' work product and communications with attorneys under the existing interpretation of Rule 26 results in many inefficiencies. For example James Beck, an attorney who practices in Dechert LLP's Philadelphia office, discusses some of the "unintended consequences" of the existing Rule 26 in an April 30, 2010 posting on his blog, Drug and Device Law.(6) Beck states that the existing Rule 26 led to a "litany of questions at expert depositions about every meeting the expert has had with counsel, what notes were taken, and what drafts exist" and refers to the "gamesmanship" which has ensued between litigators regarding the "production of material that an expert 'considered' - including drafts of expert opinions."(7)
The AICPA (the professional association in which many financial experts are members), has also weighed in on the impending amendments to Rule 26. According to an article posted on its website, the AICPA supports the amendments stating that they are "likely to enhance the ability of experts to 'collaborate with counsel to develop and refine theories and opinions.'"(8) The article goes on to state that "numerous other parties knowledgeable about the litigation process have also endorsed the amendments, including, the American Bar Association (the "ABA"), the American College of Trial Lawyers, and the U.S. Department of Justice."(9)
Thus, the amendments are aimed at reducing the added costs and hurdles to communications between attorneys and their experts that result from the inefficiencies associated with the existing Rule 26. Below is a discussion of the noteworthy amendments and new provisions of Rule 26.
Noteworthy Amended and New Provisions of Rule 26
Perhaps the first noteworthy amendment to the Rule occurs at Amended F.R.C.P. 26(a)(2)(B)(ii) which "is amended to provide that disclosure [of expert testimony] include all 'facts or data considered by the witness in forming' the opinion to be offered, rather than the 'data or other information' disclosure prescribed" under the existing Rule 26.(10) According to the Committee "this amendment is intended to alter the outcome in cases that have relied on the [existing] formulation in requiring disclosure of all attorney-expert communications and draft reports."(11) "The refocus of disclosures on 'facts or data' is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel."(12) According to an article in the November 2010 issue of The Practical Litigator, this amendment also has the effect of limiting the disclosure of assumptions furnished by counsel to only those assumptions that were "actually relied on by the expert in forming his or her opinion."(13)
The intention behind this amendment is reinforced by newly added Amended F.R.C.P. 26(b)(4)(B) which states that "Rules 26(b)(3)(A) and (B) protects drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded." (14) This is in stark contrast to the existing interpretation of Rule 26 allowing for the discovery of all expert report drafts. Per the Committee, this protection "applies to drafts that are "recorded, whether written, electronic or otherwise."(15)
Further, Amended F.R.C.P. 26(b)(4)(C) was added to provide work-product protection to "communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications."(16) Per the Committee this addition "is designed to protect counsel's work product and ensure that lawyers may interact with retained experts without the fear of exposing those communications to searching discovery."(17) The Committee states that "protected 'communications' include those between the party's attorney and assistants of the expert witness."(18)
Exceptions and Limitations to the Protections Afforded to Attorney-Expert Communications
With every rule, there are exceptions. In the case of the limitation on discovery of attorney-expert communications granted by Amended F.R.C.P. 26(b)(4)(C), there are three exceptions. To the extent that the communications "relate to compensation for the expert's study or testimony; identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or identify assumptions that the party's attorney provided and that the expert relied in forming the opinions to be expressed" they are discoverable. (19)
Per Beck's blog, these exceptions demonstrate that the changes to Rule 26 are not intended to "affect substantive Daubert decision-making."(20) That is, the exceptions provide a means for opposing counsel to ferret out whether the "expert has abdicated his research or reasoning to the attorney."(21) Beck's comment is supported by the Committee, who states that "these discovery changes ... do not affect the gatekeeping functions called for by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and related cases."(22) In fact, "counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed."(23)
Thus, if the communications fall outside of the three exceptions, discovery is permitted only in rare circumstances - i.e. through a showing of "undue hardship" by the opposing counsel - and by court order.(24)
The changes to the existing Rule 26 "will not be implemented retroactively."(25) Further, it is "not yet clear whether the amendments will limit discovery of all communications and drafts after December 1, 2010, or perhaps only for engagements commenced after that date, or whether it be effective only for matters with respect to complaints filed after that date."(26) Regardless, the amended Rule 26 will undoubtedly change the manner in which counsel and experts interact in lawsuits held in federal civil matters. Counsel should familiarize his or herself with these changes so that its retention of the expert can yield the most efficient and effective exchange of information, thereby maximizing the value added to the client.