Expert Discovery In Federal Court: Proposed Rule Changes

Expert discovery in federal court may change dramatically if proposed amendments are adopted. The Civil Rules Advisory Committee of the Judicial Conference of the United States (the “Committee”) has issued proposed amendments to Rule 26, which are now published for public comment. The Committee report and proposed amendments can be obtained at Public comments are due no later than February 17, 2009. The proposed amendments contain two substantive changes: (1) the type of disclosure required to be made concerning non-retained experts; and (2) a limitation on discovering all information provided by the attorney to a retained expert.

The first proposed rule change did not generate much debate. Rule 26(a)(2)(A) requires a party to identify any witness it may use to present expert opinion testimony at trial. Currently, a party must produce an expert report only for those expert witnesses who are “retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” (Rule 26(a)(2)(B).) No disclosure beyond the identity of the non-retained expert is currently required. Non-retained expert witnesses frequently provide both fact testimony as well as expert opinion testimony, such as treating physicians, accountants, and other professionals. The proposed amendment would require the designating party to disclose the subject matter of the witness’s expected expert testimony and a summary of the facts and opinions on which the witness will testify. The proposed amendment is intended to provide the adverse party with sufficient information to evaluate whether a rebuttal expert is necessary and to adequately prepare to depose the non-retained expert.

The second proposed amendment to Rule 26 concerns the discoverability of draft reports and attorney-expert communications. Currently, Rule 26(b)(3)(A) protects against the discovery of documents and tangible things that are prepared in anticipation of litigation or for trial, including work prepared by attorneys, consultants, or agents. Subsection (B) provides for an absolute protection against the discovery of the attorney’s mental impressions. However, Rule 26 mandates that a retained expert’s report must include the data or other information considered by the witness in forming the opinions the witness will express. (Rule 26(a)(2)(B)(ii).) Most courts have interpreted that provision to allow for carte blanche discovery of expert drafts and all communications between the expert and the attorney.

The Committee conducted numerous hearings to obtain input from practicing attorneys concerning the impact open discovery has upon the working relationship between the attorney and the retained expert. The Committee found that lawyers and experts have developed methodologies to limit the amount of discoverable evidence, but those methodologies have come at a heavy price. Many experts avoid creating draft reports at all and do not document communications with counsel. Additionally, parties are frequently compelled to hire a non-testifying consultant to help analyze facts and develop strategy and then duplicate much of that cost and expense through a separately-retained testifying expert. The Committee found that such techniques have resulted in unduly expensive pretrial preparation costs and have greatly hindered the free exchange of information between the attorney and the expert.

The Committee recommends two specific changes expanding the existing privileges of Rules 26(b)(3)(A) and (B) to prevent the discovery of draft expert reports and to protect communications between a party’s attorney and any witness required to provide an expert report. The proposed amendment does not protect the communications between the attorney and an expert witness who is not required to produce a report. The protection of attorney-expert communications would apply regardless of whether the communication was in writing or verbal. The proposed amendment provides three instances where the attorney-expert communications are fully discoverable: (1) communications regarding compensation for the experts study or testimony; (2) the facts or data the attorney provided to the expert and that the expert considered in forming the opinions to be express; or (3) the assumptions that the attorney provided and that the expert relied upon in forming the opinions to be expressed.

The Committee considered the opinions of some attorneys who expressed concern that the proposed amendment will allow the attorney and expert to hide unfavorable information as well as prevent the discovery of evidence that the attorney was the individual who, in fact, drafted the opinions set forth in the report. The Committee acknowledged these concerns but concluded that full inquiry into the facts and assumptions relied upon by the expert, as well as all reasons for the expert’s opinion, provides sufficient inquiry into the formation of the opinion and the source of the information. The Committee ultimately decided that the benefits to be obtained by allowing open exchange of information between the attorney and expert outweigh these concerns.

The Committee report is worth reviewing in full because it gives examples of the type of discovery that would still be permissible even under the proposed rules. For example, an expert could be asked why she did not consider a particular theory. If the expert did not consider the theory because the attorney advised her not to do so, she is free to answer whichever way she wants. The Committee noted that if an expert answered “I cannot tell you why I did not consider ‘X’,” it would result in the expert’s credibility being destroyed. However, the expert would always be free to answer that she did not consider “X” because the attorney told her not to do so. The Committee has recommended that its notes be included within the published Rules to give some additional information into its thoughts for adopting the recommendations it did.

The discovery related to expert discovery is a critical issue upon which many intellectual property cases may be decided. Your consideration and comments on the proposed Rules are highly recommended.