You are defending your client, a company engaged in complex scientific or technical work. As you head to trial, you have a tough decision to make. The client has employees and consultants with the knowledge and expertise to present expert testimony to help the fact-finder understand these issues. The client also has employees and consultants who are percipient witnesses whose factual testimony may be construed as venturing into expert territory, and you must ensure that these individuals are not precluded from testifying for failure to disclose them as experts. The safest, most cost-effective, and efficient approach might be to list these individuals as non-reporting experts (i.e., witnesses who have not been retained or specially employed to provide expert testimony in the case or whose duties as the party’s employees do not regularly involve giving expert testimony). However, in doing so you may have walked into a trap caused by Rule 26 of the Federal Rules of Civil Procedure (“Rule 26”). Your opponent can now try to argue that the attorney work product and attorney-client privileges have been waived and demand production of broad categories of previously protected documents.
Prior to December 2010, “data and other information considered by [an] expert” in formulating her report had to be disclosed to opposing counsel. (Notes of Advisory Committee on 1993 Amendments to Rule 26.) Courts generally interpreted this rule expansively, holding that an expert’s notes, draft reports, and communications with counsel were all fully discoverable. (See, e.g., South Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 257 F.R.D. 607, 610-15 (E.D. Cal. 2009) (“[A]ny material, including attorney opinion, considered by a testifying expert in formation of his testimony is not protected by the work product rule.”).) “Undesirable effects” resulted from this approach, including: 1) counsel hiring two sets of experts—testifying experts and consulting experts, 2) counsel taking a “guarded attitude” toward their testifying experts, and 3) experts adopting strategies that interfered with their work in order to protect against discovery. (Notes of Advisory Committee on 2010 Amendments to Rule 26.)
