Type: Law Bulletins
Date: 01/12/2011

What You Need to Know About the Changes to the Federal Rules Regarding Expert Witnesses

The general rule that we have observed throughout our professional careers is that all communications, data, correspondence, emails or other material provided by an attorney to an expert witness is fair game for discovery.  However, at the end of 2010, that will no longer be the case under the federal rules.  Generally, under the amended federal rules, a testifying expert will be treated in some ways the same as a consulting expert for purposes of the work product privilege.  

  • Rule 26(a)(2) has been amended both to compel disclosure concerning anticipated expert testimony of those expert witnesses not required to supply expert reports, and to limit the expert report to facts or data (rather than “data or other information,” as in the current rule) considered by the witness.
    • Subdivision (a)(2)(B). The amendment brings two changes to the current language.  First, the title of the subdivision, formerly “Written Report,” now will read “Witnesses Who Must Provide a Written Report.”  Fed. R. Civ. P. 26(a)(2)(B).  Second, rather than containing “the data or other information considered by the witness,” the report shall contain “the facts or data considered by the witness . . . .”  Fed. R. Civ. P. 26(a)(2)(B)(ii).
      • The refocus of disclosure on “facts or data” is intended to limit disclosure to factual material by excluding theories or mental impressions of counsel.  This amendment, which is meant to alter the outcome of cases that have relied on the former formulation of the rule, is further made explicit by the amendments to Rule 26(b)(4), which is discussed below.
      • The Committee notes reveal that the language “facts or data” is to take on a broad interpretation, such that experts will be obligated to disclose any and all factual material they so much as consider (i.e., actual reliance isn’t necessary).  
    • Subdivision (a)(2)(C).  This section will now provide that “[u]nless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
      • Although an (a)(2)(B) written report is only mandated for expert witnesses that have specifically been retained to testify, courts regularly required such reports even from witnesses exempted from the report requirement.  Subdivision (a)(2)(C) has been amended to resolve that tension by explicitly mandating summary disclosures of the opinions (and the facts supporting them) to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B).
      • This new explicit (a)(2)(C) disclosure is to be considerably less extensive than the report required under Rule 26(a)(2)(B).  And, since witnesses subject to (a)(2)(C) disclosure have not been specially retained, courts should be cautious not to require undue detail in the disclosure.
    • Subdivision (a)(2)(D).  This provision (formerly Rule 26(a)(2)(C)) is amended slightly to specify that the time limits for disclosure of contradictory or rebuttal evidence apply with regard to disclosures under new Rule 26(a)(2)(C), just as they do with regard to reports under Rule 26(a)(2)(B).
  • Rule 26(b)(4) has been amended to provide work-product protection against discovery concerning draft expert disclosures or reports and—with three specific exceptions—communications between expert witnesses and counsel.
    • Subdivision (b)(4)(B).  This provision reads: “Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.”  Fed. R. Civ. P. Rule 26(b)(4)(B).
      • It is included to afford work-product protection under Rules 26(b)(3)(A) and (B) for drafts of expert reports or disclosures to all witnesses identified under Rule 26(a)(2)(A) (i.e., it is irrelevant whether the witness is subject to the report requirement of (a)(2)(B), on the one hand, or the disclosure requirement of (a)(2)(C), on the other). 
    • Subdivision (b)(4)(C).  This provision reads: “Rules 26(b)(3)(A) and (B) protect 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, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.”  Fed. R. Civ. P. Rule 26(b)(4)(C).
      • This provision seeks to protect counsel’s work product so as to ensure that attorneys are free to interact with retained experts (who are required to provide a written report under Rule 26(a)(2)(B)), without concern of revealing those communications during discovery.
      • Although this Rule does not exclude protection under other doctrines, it does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C).
      • The protection afforded by Rule 26(b)(4)(C) should be applied pragmatically (e.g., if a party is involved in a number of suits about a given service, the protection will apply to attorney-expert witness communications in any of the cases).
      • Although the Rule exempts three topics, the protection is severable; so even when the excepted topics are included in a given communication, the protection will apply to all other non-excepted aspects of the communication.
      • Communication regarding compensation is the first exception to Rule 26(b)(4)(C)’s work-product protection.  This exception, premised on the goal of permitting full inquiry into potential sources of bias, extends to all compensation for the study and testimony provided in relation to the relevant action.
      • Facts or data considered by expert is the second exception to Rule 26(b)(4)(C)’s work-product protection.  This exception, which is designed to permit the identification of counsel-provided facts or data, applies only if the expert actually considered the information in forming an opinion.
      • Assumptions considered by expert is the third exception to Rule 26(b)(4)(C)’s work-product protection.  This exception, applies only if the expert actually considered the assumptions in forming an opinion, and discussions about hypotheticals are outside the scope of the exception.

For more information about these federal rule changes relating to experts, contact Frank Deveau or any member of Taft’s environmental practice group.

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