In 2010, Rule 26 of the Federal Rules of Civil Procedure was amended to impose new restrictions on (and significantly narrow) the scope of expert discovery, including by extending work product protection to draft expert reports and communications between an expert and the attorneys for the party that engaged the expert. Not surprisingly, litigants have since tried to withhold a wide variety of expert-generated materials on the ground that they constitute draft reports or expert-attorney communications. Courts, however, have pushed back on these efforts when litigants have stretched the bounds of what qualifies as a draft report or an expert-attorney communication too far, a recent example being Hernandez v. The Office of the Commissioner of Baseball, 2020 WL 2529576 (S.D.N.Y. May 19, 2020). In that case, Southern District Magistrate Judge Gabriel W. Gorenstein rejected the plaintiff’s claim that a memorandum that his expert had prepared in advance of the expert’s deposition—on his own accord and absent any instruction from counsel—qualified for protection as a draft report or an expert-attorney communication.
‘Hernandez’
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