Work Product Protection for Draft Expert Reports and Communications With Experts
Here’s a head’s up for environmental litigators. The committee of judges and lawyers who decide on amendments to the federal rules of civil procedure have agreed to change Rule 26 to protected draft expert reports and attorney-expert communications from discovery.
New Rule 26(a)(2)(B) still has several months of review time that have to pass before it becomes official. However, assuming that the Supreme Court and the Congress do not object (and typically they don’t), the new rule will go into effect December 1, 2010.
Under FRCP 26(b)(3)(A) and (B), discovery is not available for documents “and tangible things” prepared in anticipation of litigation or for trial absent a showing by the requesting party of substantial need for the information to prepare its case and undue hardship to obtain “their substantial equivalent by other means.” Rules 26(b)(4)(B) and (C) have been added to extend this work product protection to draft expert reports and, with three exceptions, to communications between counsel and expert witnesses.
The first exception is a communication between counsel and the expert that “relate to compensation for the expert's study or testimony.”
If you are wondering whether discovery still reaches a communication in which a lawyer provides facts to the expert, the answer is yes. Under the second exception, discovery is permitted of communications that “identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed.”
Finally, to address the source of assumptions relied upon by an expert, the third exception allows a party to discover communications between an opposing counsel and expert that “identify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.”
Inadvertent production can occur and work product protections are not absolute. So prudent lawyers will still want to consider a F.R.Evid. 502(d) order (protecting from a waiver claim inadvertently produced privileged or protected information). But the days of avoidance of draft reports, using consulting experts to do draft reports, and avoiding communications with experts on non-factual issues, in federal court, at least, will soon be over.
