Proposed Amendments to Rule 26 Address Expert Reports and Communications

Proposed amendments to Rule 26 limit discovery of draft expert reports and broad disclosure of communication that, according to the Committee on Rules of Practice and Procedure, currently prompt lawyers to devise wasteful discovery-avoidance practices.

With strong support from lawyers and bar associations, including the American Bar Association, the proposed amendments seek to shift the focus of the validity of expert opinions away from examining counsel's influence in shaping those opinions to cross-examination on the substance of those opinions and related evidence.

If enacted, revised Rule 26 will extend work-product protection to draft reports by testifying expert witnesses and communications between an expert and retained counsel except for communications that: (1) relate to compensation of experts; (2) identify facts or data provided by counsel and used by the expert; and (3) identify assumptions provided to the expert by counsel. Additionally, lawyers would be required to disclose the subject matter and summarize the facts and opinions of testifying expert witnesses who are not required to provide a Rule 26(a)(2)(B) report.

If approved by the Supreme Court and enacted by Congress, the proposed amendments will take effect as a matter of law on December 1, 2010. Attached are the proposed amendments to the rules along with an excerpt from the Report of the Committee on Rules of Practice and Procedure to the chief justice and members of the Judicial Conference.