I hope no new-lawyer reader has suffered through his expert’s deposition while opposing counsel parsed contradictions between the expert’s notes and draft reports. Many lawyers who have been practicing for a while have experienced this, because disclosing an expert’s file can unleash a Pandora’s box. But lawyers in the future may not have to suffer this fate, at least in federal court cases.
As of Dec. 1, Federal Rule of Civil Procedure 26 will change, protecting a testifying expert’s work product from discovery. Under the old version of Rule 26(b)(2)(B)(ii), an expert’s report must contain “the data or other information considered by the witness in forming” his opinions. In other words, arguably the expert’s entire file is fair game for discovery.
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