Please, don't tell: litigation consulting alert: changes to federal disclosure rules.

• Author: Harden, Stuart H.
• Position: Litigationsregs

CPAs providing litigation consultation lake note: federal disclosure rules have changed. Rule 26 of the Federal Rules of Civil Procedure specifies the duty to disclose (e.g. make available to the opposing party) documents and provisions regarding discovery in federal civil litigation.

Effective Dee. 1, 2010, Rule 26 has been modified to limit the discovery of information shared between an expert witness and trial counsel. Previously virtually all communications between an expert witness and trial counsel were discoverable, including e-mails and drafts of expert reports. Those communications are now under work-product doctrine protection.

No changes were made to the requirements for a written report from the testifying expert or rules for deposition. Also, the expert witness must continue to disclose any communications with trial counsel relating to compensation for the expert's study or testimony, facts or data provided by trial counsel that the expert considered in forming his or her opinions, and assumptions from trial counsel that the expert relied on in forming his or her opinions.

In addition, the amendments do not specifically address communications between an expert witness and other retained experts and consultants. Some courts have held that these communications are discoverable [Trigon Insurance Co. v. United Stales of America. 201 F.R.D. 277 (5th Cir. 2001)]. However, limitations on the discovery of these communications may be forthcoming as the courts interpret the amendments.

Background

Rule 26 was established in 1993 and interpretations since then have resulted in the discoverability of all communications between testifying experts and trial counsel, including draft reports, e-mails and notes of meetings and telephone discussions.

In approving the Rule 26 amendments, the U.S. Judicial Conference noted that existing rule interpretations have led to circumstances where lawyers and experts try-to avoid creating any discoverable record and at the same time attempt to discover the other side's drafts and communication.

Further, the Judicial Conference noted that the artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts one for consultation 'who do the work and develop the opinions) and one to provide the testimony to avoid creating a discoverable record of the collaborative interaction with the experts. Assuming these observations are true, the Rule 26 amendments should result in...