Rule 26 of the Federal Rules of Civil Procedure governs the disclosure of expert witness testimony during discovery. It underwent a major revision in 2010, which generally protects communications between attorneys and expert witnesses — including draft reports — from discovery. This article provides an overview of the changes, including the many exceptions and gray areas that remain.

Republic of Ecuador v. MacKay, 742 F.3d 860 (9th Cir. 2014).

Scope of the rule

The current version of Rule 26 defines discoverable items as including, “the facts or data considered by the witness in forming the expert opinions.” It protects most communications between counsel and testifying experts, “regardless of the form of the communication.” Draft reports are included in the protections, because they’re considered a work-in-process rather than a final work product — and they may differ from final reports.

However, the rule currently permits discovery of communications that:

• Are related to the expert’s compensation,
• Identify facts or data provided by the attorney that the expert considered, and
• Identify assumptions provided by the attorney that the expert relied on.

It also doesn’t provide protection for communications in which the attorney provides certain data or assumptions to use in forming an opinion. But communications in which the attorney and expert discuss 1) the potential relevance of facts or data that the attorney provided and 2) general hypotheticals using the assumptions are protected under the revised rule.

Differing interpretations

Over the years, federal courts have come to slightly differing opinions on the extent of Rule 26 protections over expert materials. For example, the U.S. Court of Appeals for the Ninth Circuit adopted a narrow view of these protections in Republic of Ecuador v. MacKay. The opinion states, “There is no indication that the [FRCP Advisory Committee] intended to expand Rule 26(b)(3)’s protection for trial preparation materials to encompass all materials furnished to or provided by testifying experts.” (Emphasis added.)

Remember: The protection of draft reports applies in only federal courts, and protected drafts must be prepared “in anticipation of litigation or for trial.” It also applies to discovery, though not to admissibility, during trial. States may have adopted rules that differ significantly from FRCP 26. For example, draft reports remain discoverable under California state law.

Tread lightly

Although Rule 26 generally protects draft reports from discovery, it has various exceptions that may come into play when collaborating with testifying experts. Always operate under the assumption that work product and drafts could be discoverable. Experienced experts are aware of Rule 26 and will encourage counsel to allow them to come up with independent assumptions when preparing their opinions.

For more information on Rule 26 of the Federal Rules of Civil Procedure, contact us today.