Revisions to FRCP Make Communications With Experts Not Discoverable


Effective December 1, 2010, FRCP 26(b)(4)(C) protects communications between a party's attorney and expert witnesses who must provide a report pursuant to FRCP 26(a)(2)(B). Communications are discoverable only where they relate (i) to the expert's compensation, (ii) to facts the expert considered in forming an opinion, and (iii) to assumptions the attorney provided and that the expert relied upon in forming an opinion.

Note that this section, like FRCP 26(b)(4)(B) (protections for draft expert reports), does not prevent discovery of things otherwise discoverable under Rule 26(b)(1) where the party seeking disclosure shows it has a "substantial need" and cannot obtain the information without "undue hardship." FRCP 26(b)(3)(A)(i) and (ii).

FRCP 26(b)(4)(C)(ii) states that the expert must only "identify" facts and data that the party's attorney provided and that the expert relied upon. Arguably, identification of such facts would not require the expert to disclose the letter from counsel or notes from a phone conference with counsel where applicable facts were disclosed. Likely, simply stating the facts counsel provided in the expert's written report would suffice.

These new protections, however, apply only to experts "retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." FRCP 26(a)(2)(B). Thus, non-retained experts such as a treating physician do not enjoy these same protections. A later post will address the reporting duties related to a non-retained expert.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Todd McMurtry, Gerner & Kearns, Co., L.P.A. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.