Plan Ahead: Proposed Amendments to Rule 26 Would Extend Work-Product Protection

One of the great things about the current rule-making process is the ability to see change on the horizon and adapt accordingly.  This year, absent any unforeseen objection or delay, Rule 26 will be amended to extend the scope of the work-product doctrine to encompass draft expert reports and most communications between experts and counsel.  Currently, the proposed amendment (and all proposed rule amendments, for that matter) is being considered by the Supreme Court.  Pursuant to statute, the Court must transmit prescribed amendments to Congress by May 1st.  Thereafter, absent legislation to reject, modify, or defer the rules, the prescribed amendments will take effect as a matter of law on December 1st.

The proposed amendment to Rule 26 would “apply work-product protection to the discovery of draft reports by testifying expert witnesses, and, with three important exceptions, communications between those witnesses and retaining counsel.”  The exceptions would allow for discovery of communications between the lawyer and expert regarding:  “(1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinion; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.”

Among the reasons cited in support of the proposal was evidence of lawyers and experts taking “elaborate steps to avoid creating any discoverable record”, including, for example, the retention of two experts: “one for consultation, to do the work and develop the opinion, and one to provide the testimony…”  The Judicial Conference also cited evidence showing that lawyers often devote significant time at deposition attempting to uncover evidence showing that the expert’s opinion was shaped by the retaining lawyer, rather than on the substantive strength or weakness of that opinion.  On a more positive note, the Judicial Conference also provided information that the State of New Jersey was successful in implementing a rule like the one proposed and that “practitioners reported a remarkable degree of consensus in enthusiasm for and approval of the amended rule.”

Briefly addressing concerns that the proposed amendment could “prevent a party from learning and showing that the opinions of an expert witness were unduly influenced by the lawyer retaining expert’s services”, the Judicial Conference concluded that “the best means of scrutinizing the merits of an expert’s opinion is by cross-examining the expert on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues.”

The full Report of the Judicial Conference discussing all proposed amendments is available here.

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