December 1, 2010 marks the date that some important changes to Federal Rules of Civil Procedure will take effect.
The changes will affect the following:
1. Rule 8: General Rules of Pleading (Last amended Aug. 1, 1987)
2. Rule 26: Duty to Disclose; General Provisions Regarding Discovery (Last amended Dec. 1, 1993)
3. Rule 56: Summary Judgment (Last amended Dec. 1, 2009)
As an expert witness, Rule 26 is the change that has most impact to me and how I interact with my cases and my clients. For this reason I have focused on outlining the more significant changes. I have provided a link to the full House Document 111-111 at the bottom of this post.
The biggest change is in the wording and interpretation of Rule 26(a)(2)(C) regarding disclosures of draft copies and communication of the expert witness. While the previous 1993 interpretation meant that all drafts, notes and communications are to be disclosed, the new Rule 26 fixes this interpretation.
Citing the “profoundly practical” argument for extending work-product protection to certain communications and all drafts of the written report, the Civil Rules Committee went on to point out the loss of “robust communication” between the attorney and the expert [1] (we all know the wild gyrations we take to avoid discoverable material) , the “tortuous steps to avoid having the expert take any notes”, and the “often futile” attempts to show that the expert was unduly influenced by the retaining lawyer. [2]
On a real-life level, I never take notes unless they are to document methodology, and unless given specific permission I avoid email and other written communication to my retaining attorney. Report generation (unless it violates a specific order) means that I generate a report without saving it and have a remote viewing session with my retaining attorney. This tends to create:
- Extra phone calls to verify recollection of information,
- Unnecessary phone tag,
- Additional report generation time, and
- A decrease in the retaining litigant’s view of the efficiency and effectiveness of the process.
Here are some of the highlights of the Rule 26 changes that fix the above issues:
- 26(a)(2)(B)(ii) has been amended to read that disclosure is to include all “facts or data considered by the witness in forming” their opinions. This changes the previous wording of “the data or other information” verbiage that was used to imply all communications, written notes and drafts.
- The “Time to Disclose Expert Testimony” has been shifted to 26(a)(2)(D) and specifies the time limit for rebuttal evidence for both 26(a)(2)(B) and 26(a)(2)(C). The new 26(a)(2)(C) deals with witnesses that are not required to provide a report.
- 26 (b)(4)(B) protects “drafts of any report or disclosure required under 26(a)(2), regardless of the form in which the draft is recorded.” Essentially this makes the verbiage change in 26(a)(2) explicit.
- 26 (b)(4)(C) provides protection for “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”. There are three types of communications that are exempted from this protection, though:
- Communications that relate to compensation for the expert’s study or testimony;
- Communications that identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed (emphasis added)
- Communications that identify assumptions that the party’s attorney provided and the the expert relied on in forming the opinions to be expressed (emphasis added)
In short – better communication, less wild gyrations by the experts and their retaining attorney and shorter deposition without all the attempts to show undue influence. I was excited to see this discussed at Sedona and am thrilled to see the results just around the corner.
The only thing I will miss is the competitive advantage actually knowing FRCP gave me in this area vs. the numerous experts that didn’t seem to take the time.
The benefits, though, definitely outweigh this one advantage.
The link to the Supreme Court’s Approved Rules page is here:
Direct links to the component PDF documents are below:
Excerpt of the Judicial Conference Report
Excerpt of the Report of the Advisory Committee on Civil Rules
[1] 111th Congress, 2d Session House Document 111-111, page 35
Civil Rules Committee Report 5/8/2009, page 3
[2] 111th Congress, 2d Session House Document 111-111, page 25
Excerpt From The Report of the Judicial Conference 12/18/2009, page 3
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