A handful of recent changes to the federal rules governing work product protection and expert discovery promise to have a profound effect on the mechanics of expert disclosure, the development of expert opinions, and the overall attorney-expert relationship. Specifically, the amendments recalibrate the balance between expert discovery and the work product doctrine, providing a significant zone of work product protection for attorney-expert communications which has not existed since 1993. Additionally, while maintaining the important distinction between “retained” and “non-retained” testifying experts, the amendments also recognize, for the first time, the importance of providing limited expert discovery from fact witnesses who may also give expert testimony.
The amendments to Rule 26 of the Federal Rules of Civil Procedure which went into effect on Dec. 1, 2010,1 have been years in the making. The changes to the rule, some of which were proposed as far back as 2000, are a response to widespread concern that the 1993 amendments to Rule 26, requiring the production of a detailed expert report and allowing for the deposition of expert witnesses, intruded too far into what had come to be regarded as firmly protected work product territory. Specifically, most jurisdictions, including the U.S. District Court for the Southern District of New York, interpreted the expert discovery provisions of Rule 26 as creating a “bright-line rule” requiring disclosure of all information provided to testifying experts. The prevailing view was that the disclosure requirements of Rule 26 took precedence over or trumped the work product doctrine.2
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