Changes to Rule 26

From the BullsEye Blog: "On Dec. 1, 2010, a major change took effect in the federal rule governing expert witness reports, giving draft reports the protection of the work-product doctrine and exempting them from mandatory disclosure. At the time, attorneys and experts hailed the change as a long-overdue step that would reduce both the cost and contentiousness of litigation.

Now, having had six months to live with the new rule, the assessment of many attorneys and experts remains favorable but somewhat muted. While there is general agreement that the change was for the better and has simplified the process to a degree, most attorneys and experts report that the actual impact on their practices has been negligible.

“It has simplified the report process and removed some of the archaic hurdles in the process,” says David Donoghue, a partner at Holland & Knight in Chicago. “But I do not think it has simplified expert discovery overall because many are still testing and litigating the boundaries of the new rule, particularly what information is in fact discoverable.”

The Dec. 1 revision of Rule 26 of the Federal Rules of Civil Procedure changed what had been the practice ever since the rule’s last major revision in 1993. No longer does the rule require full discovery of draft expert reports and broad disclosure of any communications between an expert and trial counsel.

Instead, those communications now come under the protection of the work-product doctrine, prohibiting discovery of draft expert reports and limiting discovery of attorney-expert communications. Still allowed is full discovery of the expert’s opinions and of the facts or data used to support them ..."

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Enjoy.