The federal rules of civil procedure have long exercised a profound influence in litigation document discovery. Among the most crucial of these are the specific rules governing expert discovery, and they recently underwent a dramatic change, one that alters how corporate litigation should be conducted. At the most basic level, dealing with experts has become easier and less expensive because many of their communications with counsel and their draft reports are now protected from disclosure under the “work product” doctrine. But prudent counsel must also be aware of several hidden dangers of the new rules, and should have a strategy for avoiding—or exploiting—them.
Before December 1, 2010, drafts of expert reports and all communications between counsel and experts that pertained to the subject matter of litigation were fully discoverable in nearly every jurisdiction. Lawyers therefore often spent substantial time (and client money) on schemes to avoid creating drafts of expert reports and to minimize communication with testifying experts. In addition, witnesses who were not specifically retained to provide expert testimony, but whose fact testimony at trial would happen to involve their expertise—accountants, for example—were not required to disclose their views in writing. Lawyers therefore could attempt to shoehorn expert testimony into the nonretained expert witness category, thwarting advance disclosure to the opposing party.
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