More than two years have passed since the 2010 amendments to Rule 26 of the Federal Rules of Civil Procedure took effect. Prior to their current incarnation, the rules regarding discovery of draft reports and communications between experts and attorneys spawned inefficiency and costly measures to avoid disclosure.
Subsequent to their implementation, little case law or guidance has been given to the courts, attorneys, experts and consultants, and ambiguities continue to arise about the scope and nature of the revisions: When a testifying expert is engaged in other capacities, do those roles fall under the new rule? Do limitations exist as to the types of communications discoverable between expert and counsel? At what point does a document fall under the definition of a "draft report?"
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