Synopsis: Given that litigation before the Federal Energy Regulatory Commission inevitably involves large amounts of money in controversy and extensive expert testimony, it is no surprise that formal proceedings can generate vast amounts of discovery and, correspondingly, large numbers of discovery disputes. As part of its Rules of Practice and Procedure, the FERC has promulgated Rule 402, which governs the scope of discovery in litigation, including expert witness-related discovery. Rule 402 was explicitly designed by the FERC to mirror Federal Rule of Civil Procedure 26, which governs discovery in federal court. FERC Administrative Law Judges have often looked to FRCP 26 for guidance in adjudicating discovery disputes arising from FERC Rule 402, including, by reference, the amendments to FRCP 26, which post-date the FERC's adoption of FERC Rule 402.
In 2010, the Supreme Court adopted significant amendments to FRCP 26 addressing, among other issues, the permissible scope of expert witness discovery. Whereas previous amendments to FRCP 26 had expanded the scope of discoverable material, the 2010 amendments significantly restricted the type of expert witness material that opposing parties could obtain through discovery. This article examines whether, in light of the provenance and prior interpretation of FERC Rule 402, litigants before the FERC may wish to avail themselves of the expanded protections afforded by the 2010 amendments when served with discovery to which those protections would apply in federal court. This article concludes that, in the absence of specific guidance from the FERC addressing the 2010 amendments, litigants should consider asserting their protections with respect to: (i) drafts and revisions of expert witness materials; (ii) certain communications between experts and counsel; and (iii) certain types of information considered by the expert.
In 1993, amendments to Rule 26 of the Federal Rules of Civil Procedure (FRCP) significantly expanded the scope of discoverable material arising from the use of expert witnesses by parties to federal litigation. Among other changes, these amendments permitted opposing counsel to obtain non-final drafts and revisions of an expert witness's reports, as well as a substantial amount of otherwise privileged attorney-expert communication and related material reviewed by the expert, even where the expert did not ultimately incorporate these communications or materials into his or her opinion or testimony. Ultimately, these amendments produced a surge in litigation expenses and collateral discovery disputes. In late 2009, and upon recommendation of the American Bar Association and other interested groups, the United States Judicial Conference drafted and presented amendments to FRCP 26(a)(2) and (b)(4), limiting the scope of expert witness material subject to discovery.1 These amendments were ultimately adopted by the United States Supreme Court, and became effective on December 1, 2010.2
While the rules governing discovery at the Federal Energy Regulatory Commission ("FERC" or "Commission") are based on the Federal Rules of Civil Procedure, the question remains as to whether these amendments to the latter will have an effect on discovery practice in FERC litigation and, if so, what that effect will be. This article addresses that question, and concludes that the FERC Rules of Practice & Procedure, which govern discovery,3 are explicitly based on FRCP 26, and it is likely that the modifications to that rule will serve to substantially limit the scope of discoverable expert witness-related material in three respects.
II. THE RELATIONSHIP BETWEEN FRCP 26 AND FERC RULE 402
FRCP 26 sets out general provisions for the conduct of discovery, and contains two subsections specifically addressing discovery related to expert testimony. FRCP 26(a)(2) sets out the mandatory disclosures that all testifying expert witnesses must make as a matter of course, while FRCP 26(b)(4) defines the scope of what an opposing party may seek from an expert witness through discovery. …