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?"

In its long and checkered history, Rule 26 has evolved to include provisions meant to cover discoverable information in connection with expert witnesses, with the first inclusion in the rule occurring in the 1970 revision. This initial insertion to the rule limited discovery to interrogatories of expert witnesses, unless leave of the court was granted, with the intent that disclosure be limited to "[d]isovery of facts known and opinions held by experts…acquired or developed in anticipation of litigation or for trial."

In 1993, the first significant changes were made, amending the rule to include disclosure requirements encompassing expert reports. Specifically, the expert report was required to include, "[T]he data or other information considered by the witness…" a provision which would, ultimately, become the most discussed and controversial throughout the rule’s history and subsequent modifications. Together with the revisions to the language of the rule, the Advisory Committee noted that "materials furnished to their [litigants'] experts to be used in forming their opinions — whether or not ultimately relied upon by the expert — are privileged or otherwise protected from disclosure…"

The interpretation by the courts of the 1993 amendment and its accompanying Advisory Committee notes ranged from one extreme to the other, with some federal courts interpreting "information considered" to include all draft reports as well as communications between expert and counsel. The overarching effect of the rule’s modification led to vast measures by counsel, with some going to the extreme of routinely engaging two experts — one to consult and one to testify — enabling the attorney to speak openly with his consulting expert and, thereby, avoiding disclosure. The practical effect of the amendments was less than conservative. Not only was the exchange of information and communications greatly reduced, but the process itself became extremely inefficient and costly.

In an attempt to remediate the ill side effects brought about by implementation of the 1993 amendments, as "the [Advisory] Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects," the 2010 amendments were put into place on December 1, 2010. Of great import was the revision to the language "data or other information," which was amended to "facts or data considered by the witness in forming [their opinions]."

The Advisory Committee noted that this revision "is intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports…this change [is made explicit] by providing work-product protection against discovery regarding draft reports and disclosures or attorney-expert communications."

The work-product protection did not come without limitations, specifically, three enumerated exceptions, those being communications: (a) regarding the expert’s compensation; (b) that identify facts or data provided by counsel and which were considered by the expert in forming his opinion; and (c) that identify assumptions relied upon by the expert and provided by counsel. As with the revisions to disclosure requirements of expert reports, the amendments to attorney-expert communications were enacted with the intent of "ensur[ing] that lawyers may interact with retained experts without fear of exposing those communications to searching discovery."

However, from that language has arisen the question of what the term "identify," as specified by the rule, means and requires. Where a fact exists that could have been discovered by the expert other than through communications with the attorney, does the attorney have to first restate the fact before discussing its relevance in order to avoid disclosure of the relevant conversation? Are parties sufficiently in compliance by withholding documents with duplicative information or redacting documents to disclose only "facts or data?"

Unless the attorney is identifying a fact for the first time, the entire communication with the expert in this scenario should, theoretically, be protected. However, no legislation or case law exists to clarify this ambiguity or to adopt this interpretation. The intent of the amended rule is obvious: that all relevant facts and data relied upon be disclosed, but not their strategic value or relevance to the ensuing litigation.

‘Hypothetical Scenarios’

Although the disclosure of "facts" is clearly mandated by the rule, communications between attorney and expert relating to the relevancy of such facts or data appear to fall within the confidential communications provisions, as do discussions relating to "hypothetical scenarios." Thus, the overlap between these two competing intents has created a gray area with some ambiguous and vague underlying issues. What is encompassed by "draft reports" remains equally ambiguous, with some courts ruling that development of opinions and all associated information, notes and memoranda are discoverable unless they take the form of a "draft report" or "communication." Assigning an expert’s "notes" to a category separate from "drafts," each of which may contain strategic approaches and plans, may lead to the type of circuitous ceremony which the 2010 amendments were designed to avoid, with experts styling their notes as "draft reports," thus protected by the work-product privilege.

Whether work-product protections extend up to trial is yet another debatable issue; a provision to the rule which was not adopted was specifically formulated to answer this question. As by example, is a draft report with facts or data which were not ultimately included in the final report discoverable? Are the protections afforded to the expert witness excised upon his taking the stand? Should the attorney and expert keep a record of protected communications and draft reports in order to combat these possibilities?

Until a bright-line rule is established, and until further clarification is elicited, the disclosure of draft reports and communications between attorneys and experts remain an issue to be carefully considered. However, the evolution of Rule 26 and the Advisory Committee notes indicate a trend toward protecting litigation strategies while providing all parties with the same set of facts and data. The advancement of this positive inclination can only serve to reduce the inefficiencies of time and cost while promoting equality and fairness in the judicial process. •