By: Nevin Sanli - Written for Valorem Principia
Effective December 1, 2010, an amendment to Civil Rule 26 has made a significant impact on how lawyers use expert witnesses. The amendment extends work-product protection to draft reports by testifying expert witnesses, and, with some specified exceptions, communications between attorneys and their experts.
Before the amendment, Rule 26 had been interpreted to require reports from all witnesses offering expert testimony, and to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. As a result, lawyers and experts often took elaborate steps to avoid creating any discoverable record. At the same time, they invested time and effort in discovering the other side’s drafts and communications.
This practice added to the cost and burden of discovery, impeded the efficient and proper use of experts by both sides, needlessly lengthened depositions, detracted from cross-examination into the merits of the expert’s opinions, made some qualified individuals unwilling to serve as experts, and may have reduced the quality of an expert’s work.
The Advisory Committee on the Civil Rules of Procedure concluded the best way to scrutinize the merits of an expert’s opinion is by cross-examination “on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues.”
The amended rule specifically provides that the following communications between lawyer and expert are open to discovery: 1) compensation for the expert’s study or testimony; 2) facts or data provided by the lawyer that the expert considered in forming opinions; and 3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.
Among the amended Rules effective December 1, 2010, are:
Bankruptcy Rule 1007: shortens time for a debtor to file a list of creditors after the entry of an order for relief in an involuntary case, and extends the time for individual Chapter 7 debtors to file a statement of completion of course in personal financial management.
Bankruptcy Rule 1019: with some exceptions, a new time period to object to a claim of exemption arises when a case is converted to Chapter 7 from Chapter 11, 12, or 13.
Civil Rule 56: makes procedures for presenting and deciding summary-judgment motions more consistent across districts, and closes the gap that developed between the Rule text and actual practice.
Criminal Rule 3.1: clarifies standard and burden of proof regarding the release or detention of a person on probation or supervised release.
Evidence Rule 804: extends corroborating circumstances requirement to all declarations against penal interest offered in criminal cases.
For complete information on the new Federal Rules effective December 1,
visit the Federal Rulemaking website at
“The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts —one for consultation, to do the work and develop the opinions, and one to provide the testimony— to avoid creating a discoverable record of the collaborative interaction with the experts”
—Judge Lee Rosenthal