Effective December 1, 2010, Federal Rule of Civil Procedure 26 will provide new protections and specifications for draft expert reports and certain communications between experts and attorneys. The amendments are significant because they extend work-product protection to communications and drafts that courts now consider discoverable. Current Rule 26(a)(2)(B) requires a testifying expert to disclose in a written report all “data or other information” the expert “considered” in developing his or her opinions. Courts have interpreted that language, and particularly the Rule’s reference to “other information,” to allow discovery of draft expert reports, a broad range of communications between experts and counsel, and documents an expert does not rely upon as a basis for his or her testimony. The 2010 amendments substantially alter these disclosure obligations by: (1) limiting the required disclosures in written expert reports to “facts or data” the expert considered in forming the opinions the expert will express in his testimony; (2) expressly shielding from discovery draft reports or disclosures required under Rule 26(a)(2); and (3) limiting discovery of communications between a party’s attorney and any witness required to provide a Rule 26(a)(2)(B) report unless the communications fall within at least one of three enumerated exceptions.
THIS IS NOT Intended to Be Construed or Relied upon as COMPETENT LEGAL ADVICE—Readers are urged to obtain competent legal representation to review their facts. I am not an attorney and this is not legal advice.
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