Significant Changes To FRCP 26 Will Protect Communications Between Counsel And Testifying Expert Witnesses

Proposed amendments to Rule 26 of the Federal Rules of Civil Procedure will have a profound impact on the way attorneys and expert witnesses work with each other to prepare for expert testimony at trial. The rule changes, which will take effect on December 1, 2010 unless Congress acts to prevent implementation, are intended to remove some of the discovery risks that have prevented open and frank discussions between counsel and expert witnesses and to make collaboration with experts more effective and cost-efficient.

In its current form, Rule 26(a)(2)(B) allows discovery of all "data or other information considered by" the expert witness in forming his or her opinions. Many courts interpret this language to require disclosure of all communications between counsel and testifying experts, including all draft reports prepared by the expert. Predictably, this led many litigators to actively discourage testifying experts from preparing any draft reports or communicating