On Dec. 1, 2010, several important amendments to the Federal Rules of Civil Procedure became effective. The most significant changes involve the new amendments to Rule 26 on expert witness discovery and the major revision and reorganization of Rule 56 governing summary judgment.
Rule 26 — Expert Witness Discovery
Foremost, the new amendments to Rules 26(a)(2) and (b)(4) now expressly provide that work product protection extends to communications between attorneys and specially retained experts, and to drafts of expert reports and disclosures required under Rule 26(a)(2). The new amendments are intended to resolve the split among the lower federal courts and overrule the result in cases holding that work product protection does not apply to draft reports or to attorney communications with expert witnesses who are required to provide reports under Rule 26(a)(2)(B). (The requirements of Rule 26(a)(2)(B) apply to experts who are “retained or specially employed to provide expert testimony in the case or … whose duties as the party’s employee regularly involve giving expert testimony.”)
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