Until December 10, 2010, lawyers need to remain aware that, in cases pending in federal court their communications with their retained expert witnesses and any draft reports prepared by the expert are likely to be discoverable based on a request from opposing counsel.
The expert rule changes which become effective on December 10 will give work product protection to both items. This will permit attorneys to have more involvement in the preparation of an expert’s report without their involvement being subject to discovery. The new Rule also specifically exempts draft reports from any disclosure obligation.
The limited exceptions to the work product protection specifically granted by new FRCP Rule 26(a)(4) (B) and (C) are contained in new FRCP Rule 26(a)(4)(C), and include:
- communications regarding compensation to be paid to the expert,
- "facts or data that the lawyer provided and that the expert considered in forming his opinion."
- assumptions provided by the attorney upon which the expert relied in forming his opinion.
The former practice of dodging the need to disclose communications with an expert or the expert’s draft reports, by which lawyers limited written communications to their experts and may have encouraged their experts not to keep drafts of their reports, will no longer be necessary. The revisors felt that the discoverability of draft reports and the written give and take between lawyers and their experts "inhibited robust communications" between them.
The rule remains unchanged in the North Carolina Rules of Civil Procedure. The Business Court ruled in 2008 that there is no privilege between counsel and an expert witness, which had been the general approach in federal cases. So, communications between lawyers and their experts remain discoverable in state court litigation regardless of the December 10 changes.
According to the judge chairing the committee responsible for the revisions the "changes will reduce cost, focus discovery and trial on the merits of the experts’ opinions, and allow parties and their counsel to make better use of their experts." An interview in which he discusses the changes is here.
There are also changes to Rule 56, which governs summary judgment. As I read the revised Rule, it doesn’t mark a change in how lawyers in North Carolina would approach a motion for summary judgment, but it is worth a read before you file or oppose a summary judgment motion in federal court after December 10.