US Bodily Injury News Revisions to Federal Rules save
time and money Amendments to the Federal Rules of Civil Procedure offer additional protection of communications with experts and their draft reports
Rules of Procedure, the Judicial Conference described the state of affairs before the rule changes as follows:
Jana Byron Claims executive
Recent changes to the Federal Rules of Civil Procedure (FRCP), which apply to all civil cases in the Federal Courts of the United States, came in to effect nationwide in December 2010. The revisions included changes to FRCP Rule 26, which deals with the discovery of draft expert witness reports and communications between retained experts and counsel. They are intended to streamline the litigation process and facilitate unencumbered communication between counsel and their experts.
The old rule regarding expert discovery resulted in the “widespread practice (of) permitting discovery of all communications between attorney and expert witness,” resulting in increased litigation costs and attorneys engaged in protracted litigation disputes in an effort to obtain discovery of everything considered by the expert witness, including communications between opposing counsel and their retained experts.
In addition, in an effort to work around the old rules, many lawyers would retain two sets of experts: the first would act as a consulting expert who would assist counsel in preparing the case (developing theories and strategy, etc), who would then turn the fruits of his or her labor over to a testifying expert to prevent disclosure of communications between counsel and the expert during the developmental stages of the case.
In its Report to the United States Supreme Court, the body which approves amendments to Federal
Lawyers and experts take elaborate steps to avoid creating any discoverable record and at the same time take elaborate steps to attempt to discover the other side’s drafts and communications. 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. The practices also include tortuous steps to avoid having the expert take any notes, make any record of preliminary analyses or opinions, or produce any draft report. Instead, the only record is a single, final report. These steps add to the costs and burdens of discovery, impede the efficient and proper use of experts by both sides, needlessly lengthen depositions, detract from cross- examination into the merits of the expert’s opinions, make some qualified individuals unwilling to serve as experts, and can reduce the quality of the experts’ work.
The amendments to Rule 26 are intended to address these concerns and provide practical, clear and workable solutions.
Limiting Revision to Rule 26(a)(2)(B)(ii)
Under the old Rule 26, the report prepared by an expert was required to include “the facts or data or other information considered by the witness.” Under the new Rule, “or other information” has been omitted. The new disclosure standard is stricter and, according to the Advisory Committee Notes, the refocus on “facts and data,” is intended to “limit disclosure…by excluding theories or mental impressions of counsel”. This revision is slight, but important.
Addition of Rule 26(b)(4): Protection for draft expert reports and communications between attorney and expert
Subsections (B) and (C) have been added to Rule 26(b)(4) to protect draft reports and
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