Changes to Discovery of Expert Witnesses

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Under the Federal Rules of Civil Procedure (“FRCP”) Rule 26, a trial expert must provide a written report to the court and opposing party.  From 1993 to December 1, 2010, the Federal Rules of Civil Procedure, Rule 26 required that the expert’s written report:

contain a complete statement of all opinions to be expressed and the basis and reasons therefore, the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

The Federal Courts interpreted the language “data or other information” to mean that communications between an attorney and expert witness, and the expert witness’s draft reports were discoverable.  Comments to FRCP Rule 26 detail problems that arose from allowing discovery of an attorney-expert communications and an expert’s draft reports:

Many courts read the disclosure provision to authorize discovery of all communications between counsel and expert witnesses and all draft reports.  The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects.  Costs have risen.  Attorneys may employ two sets of experts–one for purposes of consultation and another to testify at trial–because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses.  At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work.

Comments to Federal Rules of Civil Procedure, Rule 26.

On December 1, 2010, changes to FRCP Rule 26 took effect.  Rule 26(a)(2)(ii) now provides that an expert witness’ expert report need only list the “facts or data” (as opposed to “data and other information”) that the expert used in forming his or her opinion. 

Moreover, the FRCP Rule 26(b)(4) now explicitly classifies an expert witness’ draft expert report and communications between a party’s attorney and expert witness as attorney work product, and thus not discoverable by the opposing party.  FRCP Rule 26(b)(4) states as follows:

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(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.

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and

(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

Rule 26(b)(4) also allows for the discovery of communications between a party’s attorney and expert witness in three subject areas.  The three areas that are discoverable are communications that (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.

The changes to the discoverability of an expert witness’ draft report and communications between a party’s attorney and expert witness will allow for open communication between attorney and expert and require less precautionary measures.  This should result in reduced litigation cost for clients. 

While the changes were made only to the Federal Rules of Civil Procedure, Hawaii often adopts provisions from the Federal Rules.  In fact, Hawaii state courts, in interpreting provisions of the Hawaii Rules of Civil Procedure, often consider the FRCP for guidance.  Although Hawaii has yet to adopt the changes in the Federal rules relating to expert testimony, it would appear to be only a matter of time.