Changes to Rule 26 Make It Easier To Work With Experts

Recent changes to the Federal Rules of Civil Procedure (FRCP) Rule 26 make it easier to communicate with expert witnesses and to prepare them for deposition and trial testimony while still protecting attorney work product.

Effective December 1, 2010, substantive changes were made to FRCP Rules 8, 26 and 56 regarding asserting the affirmative defense of discharge from bankruptcy, working with expert witnesses, and procedural changes to bringing and opposing a summary judgment motion. This alert focuses on the changes made to Rule 26 and the immediate impact this has on working with expert witnesses.

Expert discovery has been a part of federal practice since 1993; however, the period dedicated to the discovery of attorney-expert communications and draft expert reports has become increasingly time consuming during pre-trial preparation. The recent amendments address this development and attempt to create an atmosphere that encourages better communication between