Recent Amendments to Federal Rules of Civil Procedure 26 and 56

Michael G. Brady

Source: FBA Newsletter

As many federal court practitioners are aware, Federal Rules of Civil Procedure 8, 26, 56 and Illustrative Form 52 were amended as of December 1, 2010. These amendments govern all proceedings filed on or after December 1, and will also govern all previously pending proceedings "insofar as just and practicable." 4/28/10 Supreme Court Order; 28 U.S.C. 2074(a). This article will focus on Rules 26 and 56, which contain the most significant changes.

Rule 26:

Rule 26 was amended to apply work-product protection to testifying expert draft reports and, with three important exceptions, communications between certain expert witnesses and counsel. The rule also makes clear that attorneys relying on experts who are not specifically required to provide a Rule 26(a)(2)(B) report must provide a more limited disclosure.

Rules 26(a)(2)(B) and (C) clarify that non-Rule 26(a)(2)(B) testifying experts must only provide an abbreviated disclosure

Rule 26(a)(2)(B) had previously provided that a written report must be provided by any witness "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." This language, which has remained unchanged, did not expressly require written reports from experts who fall outside the foregoing definition, such as treating physicians or in-house experts who do not regularly provide expert testimony, but Rule 26 was silent as to what type of disclosure was required of these types of experts. As a result, some courts required that written reports be submitted by experts who fall outside the definition in Rule 26(a)(2)(B).

To resolve this issue, new Rule 26(a)(2)(C) provides the disclosure requirements of those expert witnesses who are not expressly obligated to submit a report under Rule 26(a)(2)(B). Under this new subrule, a party must only provide a written disclosure of the subject matter on which the witness will testify, and a summary of the facts and opinions to which the witness is expected to testify. This less burdensome reporting obligation should foster disclosure and discovery while taking into consideration the fact that these non-retained experts may not be as willing as retained experts to prepare a detailed report. The Rule 26(a)(2)(C) disclosure may be prepared by counsel.

Rules 26(a)(2)(B)(ii) and 26(b)(4) expand the scope of the work product protection for certain communications between an attorney and testifying expert

Rule 26 was also amended to address the inefficient and costly discovery practices that have evolved with respect to attorney communications with their experts. The Advisory Committee on Civil Rules recognized that lawyers have been forced to take elaborate steps to avoid creating a discoverable record of their communications with their experts, while other attorneys also spend a great deal of time in discovery attempting to unearth information about the interaction between the opposing counsel and her expert. Rule 26 has been amended to allow attorneys to more freely collaborate with their experts without fear that certain communications will be exposed in discovery. The Advisory Committee also made clear that these rules should be applied pragmatically, to allow for proper protections while also permitting legitimate discovery of the expert's opinions:

• Only facts/data in expert reports: Rule 26(a)(2)(B)(ii) has been amended to require that an expert report include "the facts and data" that the expert considered in forming her opinion. The rule previously required that the report include "the data or other information" to be disclosed; however, this reference to "other information" opened the door to the disclosure of attorney-expert communications and draft reports. The change is meant to focus the report on the factual ingredients considered or relied upon by the expert, and not the mental impressions of counsel.
• Protection of draft reports/disclosures: Under amended Rule 26(b)(4)(B), draft reports or disclosures are now deemed to be attorney work product under Rule 26(b)(3)(A) and thus generally not discoverable. This subrule applies to retained experts and employees who regularly testify as well as experts who are not required to provide an expert report.
• Protection of communications with retained experts: Under amended Rule 26(b)(4)(C), any form of communication between a party's attorney and any witness required to prepare an expert report is deemed to be attorney work product under Rule 26(b)(3)(A) and generally not discoverable, with three important exceptions. This new protection does not apply to communications that:

1. relate to the expert's compensation;
2. identify facts or data that the party's attorney provided and that the expert considered in forming her opinions;
3. identify assumptions that the party's attorney provided and that the expert relied on in forming her opinions.