Commercial Litigation and Arbitration

New Expert and Summary Judgment Rules Go into Effect December 1, 2010

On Wednesday, December 1, amended federal expert witness and summary judgment rules go into effect. The principal changes are to Rule 26:

1. Communications between counsel and retained experts are generally protected from disclosure or discovery.

2. Counsel must prepare disclosures summarizing the facts and opinions of experts who are not required to file reports (i.e., non-retained experts).

3. Draft expert reports are no longer discoverable. Nor are draft disclosures of non-retained experts’ opinions.

An article analyzing the expert witness rule changes can be found on the Recent Articles page at

There is no substantive change in the summary judgment rule (Rule 56), but it is entirely rewritten.

These rules are applicable to pending cases, in the discretion of the Court.

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