On December 1, 2010, the Federal Rules of Civil Procedure were amended to eliminate the discovery of draft expert reports and some attorney-expert communication. This new revision makes the Federal Rules consistent with New Jersey state court practice regarding these aspects of expert discovery.
The revised rule protects as work product “drafts of any report or disclosure required under Rule 26(a), regardless the form in which the draft is recorded.” The rule also protects from disclosure “communications between the a party’s attorney and any witness required to provide a report[.]” There are three types of communications which are specifically carved out as discoverable. They are as follows:
- Communications related to compensation;
- Facts or data provided by the attorney that the expert considered in forming his or her opinions; and
- Assumptions provided by the attorney that the expert relied upon in forming his or her opinion.
For many, this is a welcome change to the Federal Rules. This revision will eliminate the complicated and contorted steps that some attorneys and experts have taken to avoid creating discoverable documents. It may also reduce the need for two sets of experts-consulting and testifying. By allowing protected communication between the expert and the attorney, the Rules recognize that experts both provide opinions to establish crucial issues before the Court, but also play a role in preparing and teaching the attorney regarding important substantive issue. In this manner, the revisions will not doubt reduce expert witnesses costs and complications regarding communication.