Rule 26: Major Changes for Attorneys and Experts

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A major revision to the federal rules governing expert witness reports is on track to take effect in December. Lawyers and experts alike agree that the changes are long overdue.

No longer would Rule 26 of the Federal Rules of Civil Procedure allow full discovery of draft expert reports and require broad disclosure of any communications between an expert and trial counsel, as has been the case ever since the rule's revision in 1993.

Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them.

The changes were approved by the U.S. Judicial Conference in September and submitted to the Supreme Court. The Supreme Court is expected to approve the amendments by May 1 and submit them to Congress. Unless Congress rejects the rules, they will take effect on Dec. 1, 2010.

The proposed rule is broadly supported by trial lawyers and bar organizations as a step towards reducing the cost and contentiousness of litigation.

Organizations that endorsed the rule include the American Bar Association, American College of Trial Lawyers, American Association for Justice, Defense Research Institute, Federal Magistrate Judges’ Association, Lawyers for Civil Justice, Federation of Defense & Corporate Counsel, International Association of Defense Counsel, and the U.S. Department of Justice.

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