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.