Recent decisions on the FRCP Rule 26 amendments pertaining to experts in products liability cases.

AuthorZeigler, Jessalyn H.
PositionFederal Rules of Civil Procedure

RECENT AMENDMENTS to Federal Rule of Civil Procedure 26 have led to a proliferation of Motions to Strike/Exclude Expert Testimony under the Court's responsibility as a gatekeeper of information that is to be considered by a jury. Keeping apprised of recent rulings on these issues is key to effectively using experts in defending mass tort claims. This article explores the changes to Rule 26 as they pertain to experts in products cases, including how courts have handled discovery disputes involving experts following these amendments.

  1. Amendments to Federal Rule of Civil Procedure 26 Pertaining to Experts

    Effective December 1, 2010, Federal Rule of Civil Procedure 26 was amended to protect draft expert materials and some attorney-expert communications from discovery. (1) New Rule 26(b)(4) works in conjunction with recently amended Rule 26(a) (2) to govern discovery and disclosure from experts, respectively. With respect to Rule 26(b)(4), the amendments inserted two new sections, (B) and (C):

    (4) Trial Preparation: Experts.

    (B) Trial-Preparation Protection for Draft Reports or Disclosures. 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.

    (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. 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.

    Rule 26(a)(2)(B) now provides that an expert report must contain the "facts or data considered by the witness in forming [the opinion to be expressed]," while the old Rule was more expansive and required the report to contain "the data or other information considered by the witness in forming [the opinions to be expressed]." (2) Section 26(b)(4)(C) applies work-product protections to communications between the party's attorney and a "testifying expert." (3) The court in Sara Lee v. Kraft Foods highlighted an exception under Rule 26 (b)(3)(A)(ii), which allows discovery if "the party seeking discovery 'has substantial need for the materials to prepare and cannot, without undue hardship, obtain their substantial equivalent by other means.'" (4)

  2. Purposes of Rule 26 Amendments

    Under old Rule 26, interpretation by courts was inconsistent. (5) The majority applied a "bright-line rule" under which matters considered by an expert in formulating an opinion, including attorney work product, were automatically discoverable. (6) On the other hand, a minority found that disclosure of core work product to a testifying expert did not affect the protection accorded to such information. (7) The majority interpretation created "undesirable effects" under the old Rule. (8) Such effects included increased discovery costs and impeded effective communication between attorneys and their experts, apparently inducing some parties to retain two separate sets of experts--one for consultation and another to testify. (9)

    As the Court in Sara Lee explained, the advisory committee intended its change "to 'limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.'" (10) According to a Magistrate Judge in the District Court of Colorado, the Advisory Committee made clear "that the amendments are meant to alleviate the perceived uncertainty and rising costs associated with attorneys' limited interactions with their retained experts as a result of court opinions allowing discovery of an expert's draft reports and of all communications with counsel." (11) Specifically, amended Rule 26(b)(4)(B) is "aimed at protecting an expert's drafts, which may contain the attorney's work product, and Rule 26 (b)(4)(C) provides specific protection for attorney-expert communications." (12)

  3. "Just and Practicable"--When Does New Rule 26 Apply?

    Rules 26 governs "all proceedings" pending on December 1, 2010 insofar as application of the Rule is "just and practicable." (13) In Chevron v. Sheffiz, the court found it just and practicable to apply the new rule because "the old Rule 26 faced conflicting interpretations," and the parties "had ample notice of the provisions of the new rules that will apply and should have been able to prepare accordingly." (14) The petitioner in Chevron had filed its application to order discovery on October 22, 2010, and the respondent agreed that it could produce documents responsive to the subpoena on December 1, 2010 if the Court ordered it to do so. (15) The Court commented further that "even with new Rule 26, the petitioner should have "ample opportunity to depose Respondent and discover the facts underlying his opinion." (16)

    In Daugherty v. American Express, the defendant argued that it would not be just and practicable to apply the amendments because discovery of the expert's file was sought by subpoena prior to December 1, the case was commenced three years earlier, and the expert was a key witness who offered new opinions despite having received no new information. (17) Discovery in Daugherty was set to dose on December 1, 2010, but the court extended discovery to December 14. (18) The expert's deposition took place on December 9, 2010. (19) Without providing analysis, the court stated that its belief that "it is just and practicable to apply the 2010 amendments to this case." (20) "Accordingly, Plaintiff need only disclose communications relating to [the expert's] compensation, identifying facts or data provided by Plaintiffs attorney ... which were considered by the expert in forming his opinion, and identifying assumptions provided by Plaintiffs attorney which were relied upon by [the expert]...." (21)

    Most recently, the District Court of Colorado in Bjorkman performed the most thorough analysis to date addressing the applicability of the 2010 Amendments. (22) The Bjorkman court quoted FED. R. CIV. P. 86(a) to guide its analysis:

    Pursuant to Fed. R. Civ. P. 86(a): These rules and any amendments take effect at the time specified by the Supreme Court, subject to 28 U.S.C. [section] 2074. They govern:

    (1) proceedings in an action commenced after their effective date; and

    (2) proceedings after that date in an action then pending unless;

    (A) the Supreme Court specifies otherwise; or

    (B) the court determines that applying them in a particular action would be infeasible or work an injustice. (23)

    After finding that the proceeding commenced after the effective date as part of an action pending on that date, the Court held that the Supreme Court has specified "nothing other than that provided in Rule 86(a)" and application of the 2010 amendments would not be infeasible or work an injustice. (24) As a result, the Bjorkman court found "that the 2010 Amendments shall apply to this proceeding in a pending action pursuant to Fed. R. Cir. P. 86(a)(2)." (25)

    1. Agreement By the Parties

      If the parties have agreed to the application of the amended rules, courts will enforce these agreements. For example, the plaintiffs in Sara Lee asserted that previous e-mails between the parties' attorneys clarifying what documents and communications fell within their agreement evinced an agreement to provide expert communications beyond what is required by amended Rule 26. (26) The court disagreed, quoting the words of plaintiffs' own counsel that "the parties agreed to limit the production of attorney-expert communications to 'any substantive emails or other documents that we sent to our experts regarding facts, opinions, or the bases for opinions that are discoverable under Rule 26(b)(4)(C) [a provision added by the 2010 amendments]." (27) The court therefore applied amended Rule 26. (28)

      The parties in CIVIX-DDI v. Metropolitan Regional Information Systems brought a joint motion for an order clarifying and establishing that the 2010 amendment to Rule 26(b)(4) applied and governed discovery in the matter. (29) The CIVIX-DDI court found it significant that "the parties bring this motion jointly, and neither advances any reason whatsoever to suggest that the application of amended Rule 26(b)(4) to this case might be unjust, impracticable, or infeasible." (30) However, the Court still analyzed whether application would be just and practicable since "one of both the parties evidently remains fearful that the other will seek to discover expert witness trial preparation materials notwithstanding any stipulated agreement they might reach on the issue...." (31) Here, the court found it just and practicable where discovery did not commence until "well after December 1, 2010" and when "there remains ample time for the parties to conduct thorough discovery of testifying expert opinions on substantive grounds, without also inquiring into draft expert reports and attorney-expert communication." (32)

    2. inconsistent Application

      Considering discovery of different experts in the same underlying arbitration, two Magistrate Judges in Florida and Colorado have made conflicting decisions. The Magistrate Judge in the Northern District Court of Florida distinguished his case, Republic of Ecuador, from multiple other cases applying the new Rule, finding that "[d]espite these cases, I believe that the new Rule 26(b)(4)(C) does not apply here." (33) Under the old Rule, the Judge ordered production of the requested documents from the defendant's expert. (34)

      A major difference between Republic of Ecuador and other cases cited was the discovery sought information for use in a Bilateral Investment Treaty arbitration...

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