Experts — Rulemaking — Advisory Committee Meeting of January 13, 2007

The following are observations of Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School, concerning the meeting of the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure in Arizona last Saturday, January 13, 2007 dealing with expert reports (see the post, below, dated January 2, 2007):

1. Consideration was given to treating physicians. The consensus appeared to be that reports should not be required because that could scare away some doctors. But there is nothing in the rule about this and it is possible that there will be an amendment to the rule to address it -- perhaps either a specific statement that reports are not required, or a return to the former rule that reports are not required but counsel must provide a thorough account of what the witness is going to say that is in the realm of expert testimony.

2. Consideration was given to doing away with expert reports entirely. But cooler heads prevailed. The point was made that there is a difference between working from a counsel's description and a report that is at least purportedly in the witness's own words.

3. With respect to employees not specially retained by experts, the Committee seems to be exploring a distinction between basic factual employees who happen to have expertise -- e.g., the drill press operator who saw the accident -- and an employee without factual information who seems to be called to end-run the report requirements. One possibility is for counsel to provide a thorough statement for all such witnesses and, if the opposing party can make a case to the judge that a report should be required -- based on the nature of the testimony or the fact that the party appears to be end-running -- then the court can order a report.

4. There was dispute about whether communications between expert and counsel should be protected. One participant made an impassioned speech about the theory of expert witnesses, that they are not supposed to be advocates, and that one needs to know all the communications in order to determine how much the lawyer has influenced the report. Others made the case that the current system mandates irrational, expensive behavior, such as the need to hire consulting experts. The Committee seems to be interested in the ABA proposal, but for its exception, i.e., "exceptional circumstances" --- what are they? That presents a drafting concern that the Chair of the Subcommittee raised three times. The goal would apparently be to require disclosure of communications only when it appears that the expert is simply adopting the lawyer's report as his or her own. One might wonder why this is a problem because such an expert opinion is unlikely to satisfy Daubert anyway.

5. There was general agreement that drafts should not be disclosed, for the obvious reasons. But the point was made that any need for access to drafts may be related to access to attorney-expert communications. So the issues are obviously related.

The discussion was, in its entirety, very preliminary and no conclusions can be drawn as to what action the Subcommittee or full Committee may take. It does appear that the treatment of experts will continue to be explored.

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