New amendments to Rule 26 of the Federal Rules of Civil Procedure significantly alter the process related to discovery by extending work-product protection to draft reports and other forms of communication between a lawyer and experts.
The numerous groups supporting the amendments anticipate the number of discovery disputes, as well as the costs associated with claims litigation, will be reduced. In turn, this will streamline litigation as the issues in dispute will be narrowed.
For risk managers facing potential claims, this means lower costs to litigate subrogation or other claims. It also may eliminate prior obstacles to expert investigations and reduce fears of creating a paper trail that will be discoverable, once litigation commences.
The Bad Old Days
To truly appreciate the impact these changes will have, it is helpful to compare/contrast the expert-investigation process under the old discoverability rules vs. the new ones.
Prior to the amendments, Rule 26 allowed discovery of all draft reports as well as communications between lawyers and expert witnesses. Therefore, lawyers often found it difficult to engage in a free-flowing and open dialogue with their experts.
In turn, experts were sometimes hindered in developing their opinions, fearful that a communication would be discoverable and misinterpreted during deposition or at trial. In addition, experts were routinely discouraged from taking notes, or making any record of preliminary analysis or opinions.
Depositions of experts were often longer than necessary and more costly as lawyers deposed experts on each and every communication. As a result, lawyers often took elaborate and costly steps to avoid creating discoverable information associated with their expert's opinions or work.
New Protections
The new amendment, Rule 26(b)(4)(B), offers protection that covers draft reports of experts who are retained or specially employed to provide expert testimony in the case or whose duties as the party's employee regularly involve giving expert testimony; it also protects experts who are expected to testify at trial but are not required to provide a report under Rule 26(a)(2)(B). The protection applies to a report regardless of the form or manner in which it is recorded.
In addition, Rule 26(b)(4)(C) was added to provide work-product protection to communications between lawyers and experts. That protection applies whether the communication is oral, written, electronic or otherwise, and the protection extends to the expert's employees.
No longer will lawyers be afraid to send e-mails to their experts or engage in open dialogue with them. At the same time, experts will not be hindered or incur additional expense in developing their opinions by the absence of, or difficulty in obtaining, information.
THREE EXCEPTIONS
There are three important exceptions. Communications between counsel and the expert are discoverable if the communications:
â–ª Relate to compensation for the expert's study or testimony
â–ª Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed
â–ª Identify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed
Also, a party still has the opportunity to seek a court order to discover additional information not within these exceptions, upon a showing of substantial need.
As individual states consider whether to incorporate the amendments into their rules of civil procedure, the amendments to the federal rules may encourage the use of the federal courts by litigants.
WORD OF CAUTION
A word of caution to risk managers: Recall that a majority of state and federal courts only attach work-product protection to communications and expert materials in your claim file when either a lawyer is hired or an internal decision is made to pursue litigation.
Although the new rules are silent on this point and case law has not yet decided this crucial nuance, it is possible that draft expert reports produced as part of a standard claim or coverage investigation may remain discoverable. So moving forward, be mindful not to put in place policies that require a report from your expert before retaining counsel.
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