Experts – Rulemaking

On January 13, 2007, the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure will be meeting in Arizona to consider whether the expert witness rule -- specifically, Rule 26(a)(2)(B) -- should be amended (1) to protect drafts of expert reports from discovery, (2) to protect some or all communications between counsel and expert form discovery, (3) to require reports from treating physicians, and (4) to require reports from employees of parties who plan to deliver expert testimony at trial.

Several articles on the Recent Articles page (e.g., Engaging Experts, Expert Spoliation) reflect my view that the cost of allowing discovery of drafts and of most, if not all, expert/counsel communications outweigh the benefits. Under the current rule, it is necessary to retain a second, non-testifying expert with whom to have any meaningful discussions (e.g., the strengths and weaknesses of your position or your adversary’s) because they are otherwise discoverable. As for treating physicians,if a report requirement is imposed, (i) some hestitant doctors will fail to comply, which will redound to their benefit since they will thereby avoid testifying, and (ii) of those willing to prepare some kind of report, many will never keep track of required items such as the number of times they’ve testified in the past four years or any demonstratives that would be useful at trial, which will give rise to motion practice. The employee witness issue potentially faces a Rules Enabling Act problem under 28 U.S.C. § 2074(b) -- namely, if the rule isn't otherwise changed, high level employees who are in regular contact with counsel (e.g., a CFO who is a CPA and will give testimony concerning compliance with GAAP) could be forced to divulge not just work product — the normal conversations between counsel and expert — but actual privileged material. Only Congress, and not rulemakers, can address privilege under § 2074(b). (GPJ)

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