Rule 26

One might think that it would be permissible for attorneys to have a private interaction with their expert, without having to reveal every scrap of paper containing a notation regarding the case. However, under the former Federal Rule 26, this was not always the case.

Under the former wording of Rule 26(a)(2)(B)(ii), attorneys were required to disclose “data and any other information,” which expert witnesses considered in the formation of their opinion.  The Judicial Conference interpreted this to “allow discovery of all communications between counsel and expert witnesses and all draft expert reports.” Consequently, the fear of an opponent’s discovery of information, that many attorneys, and rightfully so, view as privileged attorney work product, has put a burden on attorneys, who must then contemplate ethical issues versus practical case tactics.

The Advisory Committee, in its report Accompanying Proposed Amendments commented on the effect of the former legislation: “Whatever may have been intended, this passage has influenced development of a widespread practice permitting discovery of all communications between [an] attorney and expert witness, and of all drafts of the [expert’s] (a)(2)(b) report.” Likewise, in its report to the Supreme Court, the Judicial Conference commented on necessity to amend, “The artificial and wasteful discovery avoidance practices include lawyers hiring two sets of experts – one for the consultation, to do the work and develop the opinions, and one to provide the testimony – to avoid creating a discoverable record of the collaborative interactions with the experts.”

Realizing the limitations presented under disclosure requirements pursuant to the Rule as enacted in 1993, significant revisions were made to Federal Rule 26, which came into effect in December 2010. Some say these changes reinstate the primary underlying purpose of existing rules related to privilege and attorney work product, as well as serve to promote judicial efficiency. Under the new Rule 26(a)(2)(B)(ii), “data and any other information,” is replaced with “the facts or data considered by the witness in forming them.”   Legislative interpretation of the amendment is specifically intended to narrow the amount and type of discoverable information that previously required disclosure under the former rule.

Another significant change to Rule 26 are provisions providing  protection against disclosure of drafts of any reports under 26(b)(3)(A) and 26(b)(3)(B), and disclosures under Rule 26(a)(2), “regardless of the form in which the draft is recorded.”

As a result of the amendments, the former hesitation regarding the use of expert witnesses due to fear of discovery disclosure requirements may be on a downward trend.

There has been a widespread acceptance of the amendment amongst attorneys, due to the reduction of litigation costs caused by elimination of the need for discovery related motions, or the use of separate experts in avoidance of disclosure under the previous rule. Likewise, there has been a similar embracement of the changes amongst the judges presiding over matters affected by the new rule, due to the promotion of judicial efficiency and restoration of a more ethical balance between attorney communications.

As an attorney, it is important to not only be aware of recent legislation, but also its application and interpretation, as it may affect the outcome of a particular case. For a complete list of the recent changes, and their legislative intent, refer to a version of the Amendments to the Federal Rules of Civil Procedure which has been annotated with Advisory Committee Notes.

By: Alicia McKnight, J.D.