Introduction

A major revision to Rule 26 of the Federal Rules of Civil Procedure governing expert witness discovery went into effect on December 1, 2010. As a result of these changes, Rule 26 no longer allows full discovery of draft expert reports or broad disclosure of communications between attorneys and expert witnesses, as had been the case since 1993. Instead, draft expert reports and communications between counsel and expert witnesses are now protected by the work-product doctrine. While prohibiting discovery of draft expert reports and significantly limiting discovery of Attorney-Expert communications, Rule 26 continues to require full disclosure of the expert’s opinions and the facts or data used to support them.

The Old Rules Regarding Draft Expert Reports and Attorney-Expert Communications

Under the old rules, drafts of expert reports and all communications between counsel and experts relating to the subject matter of the litigation were fair game in discovery (absent an agreement between the parties that such information was off limits). As a result, lawyers and experts often took elaborate steps to avoid creating drafts of the expert’s report and to minimize communications between attorneys and experts.