Ryan Whaley Coldiron Shandy

Attention “consultants” – ever been an expert witness? If yes, then you’ve already been involved in expert discovery. If no, your time may be coming. Either way, the last thing any consultant would want is for anything they’ve done – such as an ill-considered e-mail – to hurt a case that went into litigation. So, you need to have a basic understanding of the rules governing expert discovery. Just this month, some rules you might be familiar with have changed.

We’ll tell you about those changes, but first, let’s quickly review how expert discovery has evolved in the federal courts. Way back in 1993, Federal Rule of Civil Procedure 26 was amended to establish the current system of expert reports and depositions. Following the 1993 amendments, case law developed that, in general, further liberalized expert discovery. It got to the point where many courts basically required disclosure of a testifying expert’s entire file including draft reports and correspondence with attorneys. (And boy, were there some surprises in some of those e-mails!)

In response, attorneys became much more careful about working with retained or candidate experts. For example, some attorneys instructed designated experts to not send them any e-mails, a pretty drastic limitation in today's world. Other strategies were used to avoid preparation of or disclosure of draft expert reports.

After a while, a consensus grew that the pendulum had swung so far in favor of disclosure that it restricted candid attorney-expert communication or led to wasteful game-playing. Many commentators began to advocate more balance in expert discovery.

On December 1, Rule 26 was finally amended to revise certain key provisions affecting the scope of expert discovery. Here’s a brief, simple list of the most important changes:

• The following are now protected from discovery as work product:  Drafts of any expert report or disclosure, including preliminary opinions.
• Also now protected from discovery as work product:  Communications in whatever form between an attorney and an expert UNLESS they relate to one of the following three exceptions: (1) compensation for the expert’s study or testimony; (2) facts or data the attorney provided AND that the expert considered, or (3) assumptions the attorney provided AND the expert relied upon. [This one’s a mouthful – work through it several times because the exceptions are really important.]
• Final expert reports must disclose only the “facts or data” – NOT the “facts or other information” – considered by the expert in forming his or her opinions. [Note: the broad “other information” clause was one of the key provisions in the previous version of the rule that had been used by courts to require disclosure of draft expert reports and communications between attorney and expert.]

From the Advisory Committee Notes to amended Rule 26, here’s a brief list of the main purposes and policies behind these rule changes:

• Retain broad disclosure obligation for any material considered by the expert, from whatever source, that contains factual ingredients. [Note: the operative word is “considered,” not “relied upon.
• Allow continued discovery into development, foundation, or basis of expert’s opinions. [In other words, no change to court’s Daubert gatekeeping function.
• Exclude disclosure of theories or mental impressions of counsel.
• Allow attorneys and experts to interact without fear of exposing communications to searching discovery.

As with any rule, there are going to be many unique situations not directly addressed by the amendments. Those will have to be fleshed out by case law or dealt with by agreement of the parties.

How much will really change as a result of these amendments? Here are some comments on the likely practical effect of the Rule 26 changes to expert discovery:

• Attorneys and experts may feel more free to communicate by e-mail (isn’t just about all written communication by e-mail these days?)
• Attorneys may allow experts more freedom to create and save iterations of draft reports and preliminary opinions.
• However, attorneys are inherently cautious and some may be reluctant to deviate much from how they have become used to dealing with experts in recent years.
• There would seem to be less need for stipulations between opposing parties regarding expert discovery (it had become common for parties to agree that draft expert reports were not required to be disclosed, for example).
• Instead of just producing an expert’s entire file (frequently done under the previous version of Rule 26 where there was no agreement), attorney-expert communications and draft reports will now have to be identified on a privilege log (which entails its own separate burden). [Note: neither the Rule 26 amendments nor the Advisory Committee Notes address privilege logs in connection with the new protections for expert discovery. However, Rule 26(b)(5) contains a general provision requiring that if privilege or work product is claimed, then the party must prepare what is generally referred to as a privilege log. The Rule 26 expert discovery amendments do not change this long-standing practice.]
• Attorneys and experts will have to be especially careful about the exceptions that apply to attorney-expert communications. One recommendation is that if any portion of a communication falls under an exception, no protected information should be included in that communication. Example: attorney sends e-mail to expert forwarding an attachment containing raw data (e.g., lab results). The attorney should simply forward the attachment without any comment other than something like “please review.” Why? Because if the attorney comments on the relevance of the data, that discussion would be protected as work product under the new Rule 26 amendments. Then, in discovery, the e-mail would have to be redacted. The redacted portion would be identified on the privilege log and the unredacted portion would be disclosed. Redacting stuff is a lot more work than keeping it separate.
• Because communications that fall under an exception must be disclosed, attorneys and experts who start engaging in more frequent written communication such as e-mail must be highly sensitive to how easy it is for hasty comments, personal information, or other inappropriate material to creep into those e-mails – and they must resolve and work constantly to simply leave that stuff out.
• The “privilege” now afforded to certain types of expert discovery by the Rule 26 changes is the “attorney work product doctrine” (frequently referred to as a privilege but really a doctrine). Attorneys and experts should keep in the back of their minds that work product protection is typically very solid but is not absolute. In rare circumstances, an opposing party can overcome work product by showing a substantial need for the discovery and an inability to obtain the substantial equivalent without undue hardship, although the Advisory Committee notes indicate this should be unusual given the broad expert discovery still allowed. (Note: even if disclosure were to be ordered in a rare case, the attorney’s legal theories, mental impressions, opinions, and conclusions are still protected.)