Proposed revisions to FRCP would expand the scope of the work product privilege regarding communications between attorneys and expert witnesses
The Judicial Conference of the United States approved an amendment to Rule 26 of the Federal Rules of Civil Procedure. If adopted by the U.S. Supreme Court, the amendment would expand the scope of the work product privilege regarding communications between attorneys and expert witnesses.
As recommended, Rule 26 would include the following provisions
Rule 26(b)(4)(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 of the draft is recorded.”
Rule 26(b)(4)(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 upon in forming the opinions to be expressed.
The Committee justified the amendment as “profoundly practical” and “rest[ing] not on high theory but on the realities of actual experience with present discovery practices.”
The Committee explained that the extension of work-production protection to attorney-expert communications and drafts, “begins with the shared experience that attempted discovery on these subjects almost never reveals useful information about the development of the expert’s opinions. Draft reports somehow do not exist. Communications with the attorney are conducted in ways that do not yield discoverable events.”
The Committee added, “The losses incurred by present discovery practices are not limited to the waste of futile inquiry. The fear of discovery inhibits robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion.”
Source: Wisconsin Law Journal