The New Rule 26:Must Att orneys Disclose Opinion Work Product ?
| Author | Sundeep Patel |
| Position | Is an associate at the Washington D.C. office of Kirkpatrick & Lockhart Preston Gates Ellis |
| Pages | 08 |
Sundeep R. Patel is an associate at the Washington D.C. office of Kirkpatrick & Lockhart Preston Gates Ellis. Mr. Patel primarily practices in the fields of commercial litigation, securities litigation, and white collar-criminal defense. He wishes to thank Robert Vaughn of American University's Washington College of Law for his enthusiastic teaching of civil procedure. The opinions expressed in this article are solely those of the author and are not intended in any way to represent the views of Kirkpatrick & Lockhart Preston Gates Ellis.
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The 1993 amendments to the Federal Rules of Civil Procedure have had an overwhelming effect on civil litigation through their impact on pretrial proceedings. Before the 1993 amendments, parties were limited to traditional discovery methods such as interrogatories in obtaining information from opposing parties, including information respecting testifying experts. The Federal Rules of Civil Procedure was amended in 1993 to require self-executing disclosure for initial disclosure, expert disclosure, and pretrial disclosure. Congress enacted the 1993 Amendments to curb perceived abuses and delays in the civil justice system.1 The proposed amendments to Rule 26 generated substantial controversy and an unsuccessful effort to persuade Congress to delete the proposed changes from the rule. The focus of this article is to outline the changes in Rule 26. More specifically, this article addresses the change in expert disclosure by comparing the prior Rule 26 and the amended rule. Finally, this article discusses the continuing uncertainly about whether attorney work product must be included in required expert witness disclosures.
Prior to the 1993 Amendments, Rule 26(s) stated: b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.... (4) Trial Preparation: Experts. Discovery of facts known and opinions known by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial may be obtained only as follows: (A)(I) A party may through interrogatories require any other party to identify each person the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means .... Under the previous rule, courts were split as to the discoverability of an attorney's opinion work product. Some courts held that all opinion work product shown to a testifying expert must be discoverable. This interpretation of the rule was defended on the grounds that cross examination to an adverse party's expert would be futile without knowing how opposing counsel's opinions affected the expert's testimony.2 Other courts firmly held that all opinion work product given to an expert was shielded from discovery.3 Essentially, courts were split as to the interpretation of the rule on expert disclosure.
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The amended Rule 26 brought about significant changes in comparison to its predecessor. First, the amended rule removes the need to ask interrogatories to the opposition's expert to learn of the subject matter of the expert's testimony. Instead, Rule 26(a)(2)(B) requires opposing parties to disclose certain expert-related material The material that is provided by each expert is known as the expert's report, and it must be disclosed without the need for any discovery requests. The report requirement applies to any "witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony." Moreover, Rule 26(b) allows a party to depose the opposition's expert and requires that the expert provide his or her report prior to the taking of the deposition.
Second, under the previous rule, a party could only seek "facts known and opinions known" by the experts through the use of...
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