2010 Amendments to Expert Witness Discovery Under Federal Rule 26 Address Four Issues:

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1 2010 Amendments to Expert Witness Discovery Under Federal Rule 26 Address Four Issues: The scope of information that needs to be disclosed in a testifying expert s written report. Rule 26(a)(2)(B)(ii). The scope of disclosure of non-retained experts. Rule 26(a)(2)(C). The expert work product protections for draft disclosures. Rule 26(b)(4)(B). The expert work product protections for communications with counsel. Rule 26(b)(4)(C). Weil, Gotshal & Manges LLP 1

2 Rule 26(a)(2)(B)(ii) Scope of Written Report Before 2010 Amendments (ii) the data or other information considered by the witness in forming them 2010 Amendments (ii) the facts or data considered by the witness in forming them The amended rule now limits disclosures only to material of a factual nature. According to Advisory Committee Notes, the purpose of limiting the disclosure to facts or data and not other information was to protect counsel s theories and mental impressions. The Advisory Committee Notes also instruct that facts or data [should] be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. This obligation extends to any facts or data considered by the expert in forming the opinions, not only those relied upon by the expert. The retention of the word considered was intentional. Weil, Gotshal & Manges LLP 2

3 Rule 26(a)(2)(C) Scope of Disclosure of Non-Retained Expert New Section (a)(2)(c): 2010 Amendments (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify This category often involves physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. The purpose was to ensure that this category of experts not be required to provide the full Rule 26(a)(2)(B) report, as courts have sometimes required. These witnesses still may need to be deposed. See Allstate Insurance Co. v. Nassiri (D. Nev.): [t]he absence of an expert witness report increases the need for a complete and thorough deposition. Weil, Gotshal & Manges LLP 3

4 Rule 26(b)(4)(B) Expert Work Product Protections for Draft Disclosures New Section (b)(4)(b): 2010 Amendments (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. Applies to all witnesses identified under Rule 26(a)(2)(A), whether they are required to provide reports under Rule 26(a)(2)(B) or are subject to the disclosure under Rule 26(a)(2)(C). Notes or Drafts : Several decisions suggest that an expert s notes are discoverable unless they comprise a draft. In re Application of Republic of Ecuador (N.D. Ca): The court found that notes, task lists, outlines, memorandum, presentations, and draft letters authored by expert witness, nonattorney employees, or other testifying experts, are not protected as draft reports, and thus, must be disclosed. However, actual drafts of expert reports, whether authored by expert or his co-authors or staff, are protected and need not be produced. International Aloe Science Council v. Fruit of the Earth (D. Md.): Plaintiff s expert did not draft the notes in developing the opinions that he will provide at trial. Rather, he drafted the notes to prepare Plaintiff s counsel for deposing Defendant s expert and to help counsel understand the reports provided by Defendant s expert. Thus, the notes are protected work product. Weil, Gotshal & Manges LLP 4

5 Rule 26(b)(4)(C) Expert Work Product Protections for Communications with Counsel New section (b)(4)(c): 2010 Amendments (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 the assumptions that the party s attorney provided and that the expert relied on in forming the opinions to be expressed. Advisory Committee s Notes: Rule 26(b)(4)(C) protects communications between a party s attorney and testifying retained expert witnesses. This section was added to protect counsel s work product and ensure that lawyers may interact with retained experts without fear of wholesale discovery. Republic of Ecuador v. Bjorkman (D. Co.): Only communications between an expert witness or his staff and counsel are protected. Communications among expert, his staff, and non-attorneys (including experts) are not protected, even if an attorney is copied on the communication. Dongguk University v. Yale University (D. Conn.): An expert s hand-written notes are not protected by Rule 26(b)(4)(C) because they are not communications between the party s attorney and the expert witness. Weil, Gotshal & Manges LLP 5

6 Limits to Rule 26(b)(4) Protection The Committee Notes emphasize that opposing counsel may inquire into an expert s opinions, including the development, factual foundation or basis of these opinions Proper areas of inquiry include: the expert s testing methods, the expert s communications with individuals other than counsel, and any alternative analyses, methods or approaches that the expert did not use. In re Application of Republic of Ecuador (N.D. Ca.): The intention of the work product rule is to protect the mental impressions and legal theories of a party s attorney, not its experts. Thus, work product protection does not extend to the expert s own development of the opinions to be presented outside of draft reports. Protected materials may still be discovered if the party has a substantial need for discovery and cannot obtain the substantial equivalent without undue hardship Exception to work product protection under Rule 26(b)(3)(A)(ii) A substantial need showing will be the rare case Even if such a showing is made, the Notes further instruct courts to protect against disclosure of the attorney s mental impressions, conclusions, opinions, or legal theories... Weil, Gotshal & Manges LLP 6

7 Retroactivity The implementing order states that the amended rule shall govern in all proceedings pending on December 1, 2010, insofar as just and practicable. Daugherty v. American Express Co. (W.D. Ky.): it is just and practicable to apply the amendments to a case that was commenced in 2008, when deadlines had been set and reset, and discovery was closed on December 14, U.S. v. Sierra Pacific Industries (E.D. Ca.): application of amended Rule 26 was just and practicable where expert disclosures occurred pre-amendment but expert depositions took place after the effective date. At least one federal court has concluded, in a different context, that the amendments to Rule 26 do not apply retroactively. See Lattuga v. U.S. Postal Service (S.D. Ohio). Weil, Gotshal & Manges LLP 7

8 Expert Witness Disclosure: Comparison of Rules Federal, New York, and Delaware ABA Section of Litigation Expert Witness Committee 2013 Expert Lawyers on Expert Witnesses Deborah A. Skakel. Esq. Dickstein Shapiro LLP May 8, 2013

9 New York Commercial Division Voluntary Rule on Expert Witness Disclosure 2012 Proposed Rules: Proposed Amendments to Uniform Rules for N.Y.S. Trial Courts Rule (g) Purpose: Bridge the gap between New York C.P.L.R. and Federal Rules. C.P.L.R. special circumstances requirement for expert reports. C.P.L.R. lacks protections provided under 2010 Amendments to the Federal Rules. Goal: Eliminate expert disclosure limitations that make litigating in New York substantially less desirable than bringing the same case to federal court or Delaware. 9

10 New York Commercial Division Rules on Expert Witness Disclosure Part I: Meet and confer regarding schedule for expert discovery at least 30 days before close of discovery. All expert disclosure to be completed no later than four months after close of discovery. Experts must submit written report. 10

11 New York Commercial Division Rules on Expert Witness Disclosure Part II: The report must contain: A. a complete statement of all opinions the witness will express and the basis and the reasons for them; B. the data or other information considered by the witness in forming them; C. any exhibits that will be used to summarize or support them; D. the witness's qualifications, including a list of all publications authored in the previous 10 years; E. a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and F. a statement of the compensation to be paid for the study and testimony in the case. 11

12 Status of Voluntary Commercial Division Rule Proposed Amendment to Rule (g) has not been promulgated by the Chief Administrative Judge. Three Commercial Division Justices have adopted the Expert Disclosure rule as an Individual Practice Rule (Ramos, Schweitzer, and Sherwood). 12

13 Comparison to the Federal Rules Proposed Commercial Division Rules modeled on federal style" Practical effects: Consistency Speed Expert disclosure (reports/depositions) to be completed no later than four months after completion of fact discovery. Counsel must discuss scope and timing of disclosures at Preliminary Conference i.e., at beginning of case. 13

14 What the Commercial Division Rule Does Not Include: Protection of Draft Reports or Attorney- Testifying Expert Communications Advisory Group to the New York Federal-State Judicial Council recommended provisions in addition to those of the Commercial and Federal Litigation Sections Proposed Commercial Division Rule. Drafts of any written report not discoverable. Communications between a party s attorney and any expert required to provide a written report are not discoverable, with same three exceptions as FRCP 26 s 2010 Amendments. 14

15 Delaware Complex Commercial Litigation Division Protocol for Expert Discovery Provides for depositions of expert witnesses and disclosure beyond that required under Chancery Court Rules 26(b)(4)(A). At least 14 days prior to the expert s deposition, a party must identify the documents reviewed by the testifying expert and produce the documents relied upon by the testifying expert, including third-party documents not produced and documents prepared by the expert. No communications between counsel for a party and the party s expert shall be produced. No party shall be required to produce any work product between the expert witness and the proffering party s counsel. 15

16 Expert Lawyers on Expert Witnesses Avoiding Motion Practice and Challenges to Admissibility Presented by Brian S. Fraser, Partner, (Industry or Practice Area if needed) Date Month Date, Year

17 The Fundamental Basis For the Admissibility of Expert Testimony is Reliability. Expert Witnesses can rely on evidence that would not itself be admissible, such as hearsay. Fed. R. Evid. 703, Bases of Opinion Testimony by Experts, provides that the facts or data [on which the expert relies] need not be admissible in evidence. 17

18 The Fundamental Basis For the Admissibility of Expert Testimony is Reliability. However, the expert must rely on objective, provable facets, not for example the opinions of a party to the litigation. In other words, the hearsay must be reliable. See Arista Records, LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, (S.D.N.Y. 2009); Robinson v. Sanctuary Record Groups, Ltd., 542 F. Supp. 2d 284, 292 (S.D.N.Y. 2008). 18

19 The Expert s Report Must Rely on the Expert s Own Data or a Reliable Independent Source. A Damages expert cannot base a lost profits opinion on the plaintiff s own sales projections: Any type of projection is an opinion. To be admissible the sales projections by the plaintiff must qualify under Fed. R. Evid. 701, Opinion Testimony by Lay Witnesses. Better to have the expert prepare his/her own projections. 19

20 The Expert s Report Must Rely on the Expert s Own Data or a Reliable Independent Source. Independent Sources of Data Must Be Reliable. Experts can rely on the out of court (hearsay) data provided by independent and recognized sources of information but the data has to be accurate and reliable. Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 650 F. Supp. 2d 314 (S.D.N.Y. 2009) (data from market research firm found to be unreliable; expert opinion excluded). 20

21 The Expert s Conclusions Must Be Consistent With Every Day Experience and Common Sense. An assumption that sales and profits will continue to grow at a consistent rate over an indefinite period of time, without reference to real-world factors, is not admissible. Point Prods. A.G. v. Sony Music Entertainment, Inc., 215 F.Supp.2d 366 (S.D.N.Y. 2002). 21

22 Preparation for Expert Testimony Must Include Rigorous Analysis of the Underlying Data, Not Just the Conclusions. May sound obvious but many experts, particularly senior academics or scientists, rely upon the work of assistants or graduate students. Lack of intimate familiarity with data can be fatal on cross-examination and can lead to exclusion. 22