Litigation Alert: Amendments to Rule 26 To Take Effect December 1, 2010 – Will Limit Expert Witness Disclosures

Date: Nov 24, 2010

Amendments to Rule 26 of the Federal Rules of Civil Procedure will take effect on December 1, 2010. The amendments will extend the attorney-client and attorney work product protections to attorney-expert communications and carve out a new category of expert witnesses.

Specifically, changes to Rule 26 will limit the scope of required expert witness disclosures that were previously permitted under the rule. The first change extends the protection of the work product doctrine to all drafts of expert reports and disclosures equally to all Rule 26 witnesses. The amendment will encourage expert witnesses to freely memorialize their thoughts and opinions without having to fear that evidence of their evolving mental impressions about the case will be accessible to and used against them by the party opponent.

Second, the addition of subsection (b)(4)(C) will protect communications between an attorney and a testifying expert, whether written, oral, or otherwise, unless the communications (1) relate to the expert's compensation; (2) "[i]dentify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed;" or (3) "[i]dentify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed." The amendment will enable an attorney to confidently assert the work product doctrine to prevent disclosure of her theories and/or mental impressions concerning the litigation discussed with the expert.

Certain states already offer such protections. California courts, for example, have consistently held that waiver of the work product doctrine occurs only where the attorney voluntarily discloses her impressions and opinions to someone who has no interest in maintaining the confidentiality of the contents of the writing. BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261. The rationale offered by California courts is that such disclosure would be "wholly inconsistent with the purpose of the privilege." Laguna Beach Co. Water Dist. V. Sup. Ct. (Woodhouse) (2004) 124 CA4th 1453, 1459. California courts have recognized that the work product doctrine protects information against opposing parties and not "against all others outside a particular confidential relationship, in order to encourage effective trial preparation." BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App. 3d at 1256. Subsection (b)(4)(C) will align rule 26 with state practices and the inherent purpose of the work product doctrine, thus, precluding the notion that all materials disclosed to the testifying expert are discoverable.

Third, subdivision (a)(2)(C) effectively carves out a new category of expert witnesses by requiring minimal disclosures regarding the opinions to be offered by expert witnesses who are not required to provide reports under Fed. R. Civ. P. 26(a)(2)(B). A witness who is not required to provide a report could testify as either a fact witness or an expert. One such example is a party's in-house employee, who is not in the business of offering expert testimony. Pursuant to the amended rule, the party, and not the witness, will have to disclose the subject matter of the witness testimony and a summary of facts and opinions on which the witness will offer testimony. Communications between the party's attorney and the witness will bar inquiry into disclosures made to the witness. The amendment will likely preclude the opponent's argument that attorney-client privilege and work product objections are waived at the point of designation of the in-house employee as an expert witness.

Before the change, Rule 26(a)(2) required that civil litigants disclose to each other the identity of any witness who may have been used at trial to present evidence under the evidentiary rules applicable to expert testimony. The old rule required that a written report accompany the disclosure for (1) experts who were retained or specially employed to provide expert testimony in the case; or (2) an employee of the party whose duties regularly involved providing expert testimony. Fed. R. Civ. P. 26(a)(2)(B). The expert's report had to contain a complete statement of all opinions the expert intended to express; the basis and reasons for the opinions; the data or other information the expert considered to form such opinions; any exhibits the expert intended to use to summarize or support the opinions; and the expert's qualifications, compensation and prior testimony. Id.

The required disclosure of "data or other information considered by the expert" under the earlier version of the rule generally included disclosure of information that would otherwise be protected by the attorney-client privilege and/or the attorney work product doctrine—whether or not the expert actually relied upon the information in forming the opinion. The majority view of the earlier version of Rule 26 is that it "require[d] disclosure of all information provided to testifying experts," including privileged or protected documents. Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006).

In fact, courts have gone so far as to interpret the earlier version of the rule to mean that even inadvertent disclosure of core work product may constitute waiver and thus require disclosure. In In re Vioxx Products Liability Litigation, MDL No. 1657, 2007 WL 1558700 (E.D. La. May 30, 2007), two experts were provided with a copy of a "detailed litigation strategy outline" which discussed "scientific issues in the case." Plaintiff's attorney sought to compel return of the outline and both of the experts alleged that they did not have a specific recollection of having reviewed it. Although the court was asked to carve out an exception for inadvertent disclosures of "core work product," the court recognized that the old FRCP 26(a)(2)(B) supported waiver as to materials provided to testifying experts and, consequently, held that the outline could be used in examining the two experts to whom it had been disclosed. Id.

The amendments to Rule 26 will dramatically increase the protections offered by the attorney-client privilege and the attorney work product doctrine to expert witness disclosures. The amendments to FRCP 26 will constitute an important step towards eliminating the need for attorneys to engage "consulting experts" and to establish protocols for communicating with their experts to assure that privileged communications and attorney work product are not disclosed. Similarly, a party's attorney will not have to concern herself with the title under which her client's in-house employee would offer her testimony. Notably, the proposed amendments will likely result in a significant reduction of costly discovery disputes over the production of marginally relevant material, allowing both the court and the litigants to refocus their efforts on the actual merits of the case.