RECENT AMENDMENTS to Federal Rule of Civil Procedure 26 have led to a proliferation of Motions to Strike/Exclude Expert Testimony under the Court's responsibility as a gatekeeper of information that is to be considered by a jury. Keeping apprised of recent rulings on these issues is key to effectively using experts in defending mass tort claims. This article explores the changes to Rule 26 as they pertain to experts in products cases, including how courts have handled discovery disputes involving experts following these amendments.
I. Amendments to Federal Rule of Civil Procedure 26 Pertaining to Experts
Effective December 1, 2010, Federal Rule of Civil Procedure 26 was amended to protect draft expert materials and some attorney-expert communications from discovery. (1) New Rule 26(b)(4) works in conjunction with recently amended Rule 26(a) (2) to govern discovery and disclosure from experts, respectively. With respect to Rule 26(b)(4), the amendments inserted two new sections, (B) and (C):
(4) Trial Preparation: Experts.
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(I) relate to compensation for the expert's study or testimony;
(II) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(III) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
Rule 26(a)(2)(B) now provides that an expert report must contain the "facts or data considered by the witness in forming [the opinion to be expressed]," while the old Rule was more expansive and required the report to contain "the data or other information considered by the witness in forming [the opinions to be expressed]." (2) Section 26(b)(4)(C) applies work-product protections to communications between the party's attorney and a "testifying expert." (3) The court in Sara Lee v. Kraft Foods highlighted an exception under Rule 26 (b)(3)(A)(ii), which allows discovery if "the party seeking discovery 'has substantial need for the materials to prepare and cannot, without undue hardship, obtain their substantial equivalent by other means.'" (4)
II. Purposes of Rule 26 Amendments
Under old Rule 26, interpretation by courts was inconsistent. (5) The majority applied a "bright-line rule" under which matters considered by an expert in formulating an opinion, including attorney work product, were automatically discoverable. (6) On the other hand, a minority found that disclosure of core work product to a testifying expert did not affect the protection accorded to such information. (7) The majority interpretation created "undesirable effects" under the old Rule. (8) Such effects included increased discovery costs and impeded effective communication between attorneys and their experts, apparently inducing some parties to retain two separate sets of experts--one for consultation and another to testify. (9)
As the Court in Sara Lee explained, the advisory committee intended its change "to 'limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.'" (10) According to a Magistrate Judge in the District Court of Colorado, the Advisory Committee made clear "that the amendments are meant to alleviate the perceived uncertainty and rising costs associated with attorneys' limited interactions with their retained experts as a result of court opinions allowing discovery of an expert's draft reports and of all communications with counsel. …