Good News For Experts (And Attorneys Who Use Them)

more+
less-

Law360, New York (November 29, 2010) -- Amendments to Federal Rule of Civil Procedure 26, taking effect on Dec. 1, should streamline the management of testifying expert witnesses and reduce the costs of expert witness discovery in cases pending in federal court. The amendments provide for expanded discovery protection of communications between attorneys and testifying expert witnesses, including protection of any of the testifying expert’s draft reports, by classifying those communications and reports as protected attorney work-product.

The new rule, however, will not protect communications between an attorney and a testifying expert: (1) relating to the expert’s compensation; (2) identifying facts or data provided by an attorney and considered by the expert in forming an opinion to be expressed; and (3) identifying assumptions provided by an attorney that the expert relied upon in forming an opinion to be expressed. These changes will likely affect the way in which attorneys work and communicate with expert witnesses in federal cases.

Existing Rule for Testifying Experts

In 1993, Rule 26 was amended to require disclosure of reports by any witness retained to provide expert testimony or by any party’s employee whose duties involve giving expert testimony. Many courts interpreted these amendments broadly, requiring disclosure of almost all communications between attorneys and testifying experts, including drafts of any expert reports.

One consequence of the expansive disclosure requirements was that many attorneys employed two sets of experts: one set of consulting experts to strategize and develop theories of the case, and another set of experts who would actually testify at trial. For many parties, however, this bifurcated strategy was cost-prohibitive.

Please see full article below for more information.

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


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.

© Sutherland Asbill & Brennan LLP | Attorney Advertising

Written by:

more+
less-

Sutherland Asbill & Brennan LLP on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*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. Or, sign up using your email address.
×
Loading...
×
×