Pursuant to recent changes in the Federal Rules of Civil Procedure, draft expert reports and communications between attorneys and their retained experts are now considered attorney work product and, therefore, presumptively undiscoverable. So, if you are a civil litigator in federal court, gone are the days of worry¬ing about the discovery of strategy sessions with your experts and spending countless hours and client dollars fighting over who really drafted the expert's opinion.
Or are those days truly gone? After years of investigation and analysis of perceived problems with expert discovery under Rule 26 of the Federal Rules, the Advisory Committee on Federal Rules of Civil Procedure ("Advisory Committee") succeed¬ed in revising the federal discovery rule in the hopes of refocusing civil litigators on the merits of expert opinions and away from the minutiae of attorney-expert collaboration. The revised rule, which became effective in December 2010, contains language that dramatically limits expert discovery. However, closer examination reveals terminology that may provide fodder for future discovery disputes and uncertainty regarding what is and is not discoverable.
Consequences and Failures of Unrestricted Expert Discovery
In 2006, the Advisory Committee began investigating concerns raised by the American Bar Association regarding the discovery of trial expert draft reports and communications with counsel.1 Specifically, at that time, Rule 26(a)(2)(B) required the expert to disclose "data and other information considered by the witness" in forming his opinions. This language, which was added in 1993, had been interpreted by a number of federal courts to require disclosure of all draft reports and all communications between the expert and the attorney, even if those communications contain traditional attorney work product, such as trial strategy and mental impressions.2