Under the 2010 changes to the Federal Rules of Civil Procedure,
work product protection generally extends to testifying
experts' draft reports. How does that general approach apply if
the adversary believes that a party's lawyer helped draft those
reports?
In U.S. Commodity Futures Trading Commission v. Newell,
Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734, at *9 (N.D. Ill.
Aug. 25, 2014), plaintiff argued that defendants could not rely on
the new rule extending work product protection — because
defendants' lawyers had "commandeered" the drafting
process. The court rejected this argument, concluding that any
exploration of the lawyers' role would necessarily
"require an analysis of the degree of counsel involvement
(both quantity and quality) in the drafting of the report."
Id. at *14. This in turn would "necessarily require
production of all of the drafts of the report for comparison,"
as well as production of communications between the testifying
expert and the
