Experts — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 26

The Advisory Committee's proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts:

The Rule 26 amendments extremely well done. I like the balances struck, the language and particularly the new summary of opinions of Rule 26(a)(2)(A) witnesses. There are two practical problems that I think the Committee should address. First, 26(a)(2)(A) summaries should explicitly be made due at the same time as 26(a)(2)(B) reports (or at least the responses to summaries should be due when expert reports are due from the rebutting party). Second, the receiving party should be authorized to take a second deposition as of right if the 26(a)(2)(A) summary is disclosed after an initial deposition of the newly-minted expert, the second deposition being limited to the subject matter of the summary.

Timing. I believe that identical timing for 26(a)(2)(A) summaries and 26(a)(2)(B) reports is implicit in 26(a)(2)(D)(ii), but the reality is that the timing of 26(a)(2)(B) reports is governed by pretrial orders, not the 26(a)(2)(D)(ii) default. It will take a substantial period of time for those orders to uniformly cover 26(a)(2)(A) summaries, which means that there will be no clear timing for those. Right now, a 26(a)(2)(A) disclosure can be dropped on an opposing party any time before the pretrial order precludes it — and the earlier the better because early disclosure affords additional notice.

Under the proposed new regime, the timing of a 26(a)(2)(A) summary can become problematic — and subject to gamesmanship — because the opponent is forced to respond with expert rebuttal within 30 days. If the summary is disclosed when expert reports are exchanged, there is no problem. Experts are lined up. Counsel are focused on experts. If the summary is disclosed in the middle of intense discovery or motion practice or some other inopportune time for the recipient (vacation and holidays come to mind), it may be very challenging to arrange the expert testimony necessary to respond to it within 30 days. Explicitly, the timing of summaries and reports should be equated. This will mean that the deposition of the non-reporting expert, on his or her summary, will take place with those of other experts, which is only fair since the expert testimony should be evaluated in the prism of all of the facts. At a minimum, the expert rebuttal to 26(a)(2)(A) summaries should be the same date that expert reports from the rebutting party are due. This, indirectly, will likely have the same effect because the dislosing party will not want to afford months of additional time to an opponent to respond/rebut.

Second Deposition. Unless the Committee otherwise addresses the issue, if a 26(a)(2)(A) expert has been deposed before the summary has been disclosed, leave of court will be required under Rule 30(a)(2)(A)(ii) to depose the expert again on the subject matter of the summary. Leave should not be required. That would amount to needless motion practice in the routine case. The burden of showing that a second deposition is unnecessary should be on the party disclosing the summary.

Note on Work Product. I like the way that 26(b)(4)(C) deftly includes oral communications that 26(b)(3) does not. Isn’t it time to fix 26(b)(3)? It now fails to cover oral work product. The Committee has already drafted language fixing this omission in the definitional section of proposed Federal Rule of Evidence 502. It should be inserted into 26(b)(3).

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