US Bodily Injury News
communications with experts from discovery in litigation. These subsections provide:
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Again, these new subsections have been enacted to provide a practical solution and encourage unencumbered interaction between counsel and retained experts without fear of exposing the substance of those interactions to the other side during the course of discovery.
Overall, these revisions should streamline the discovery process, decrease costs and significantly alter the way that attorneys and their retained experts communicate with each other by removing much of the risk of disclosure and encouraging open communication about the case. These amendments also bring US federal law more in line with the law in the UK, as well as other jurisdictions where communications between attorneys and trial experts are not subject to disclosure. The amendments only apply prospectively in matters pending in a US federal court and not in state court proceedings.
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