2010 FEDERAL RULE AMENDMENTS REGARDING EXPERT WITNESSES

Transcription

1 2010 FEDERAL RULE AMENDMENTS REGARDING EXPERT WITNESSES Thursday, February 10, 2011 Presented for ACC Small Law Department Committee by: DAVID T. ROYSE MEMBER STOLL KEENON OGDEN, PLLC 300 W. VINE STREET, SUITE 2100 LEXINGTON, KY (859)

2 I. OVERVIEW A. New Rules effective December 1, B. Principal changes address expert witnesses. Also Summary Judgment Rule amendments, but non-substantive. C. Three principal changes regarding experts: 1. Communications between the lawyer and the expert are now generally protected. Reversion to pre-1993 law. 2. Draft expert reports no longer discoverable. 3. There is a designated category of non-retained experts, such as treating physicians, people associated with a party or a party itself, who are experts and will testify with specialized expertise, but who do not regularly testify as an expert retained by one party for a specific purpose or piece of litigation. These nonretained experts do not have to file a report, but their anticipated testimony must now be disclosed in summary fashion.

3 II. COUNSEL COMMUNICATIONS WITH EXPERT A. In 1993, Expert Report rule came into effect and opened the door wide to communications between lawyers and experts. 1. First, the Rule expressly required that the expert report contain all data or other information considered by the witness in forming his opinions. This was interpreted to cover everything the lawyer discussed with the expert or showed the expert. 2. The Advisory Committee commentary made clear that there was no protection for material or information given to an expert by a lawyer.

4 II. COUNSEL COMMUNICATIONS WITH EXPERT (Cont ) B. The 2010 Amendments close this door almost entirely to communications between counsel and retained expert witnesses. (There is a limited opportunity to get into oral communications between a lawyer and a non-retained expert.) 1. Rule 26(a)(2)(B)(ii). Data or other information is now stricken. The Rule now says, Facts or data considered by a witness. The Advisory Committee notes explicitly acknowledge that this is intended to preclude the obligation to provide attorney-expert communications. 2. New Rule 26(b)(4)(C). Expressly confers trial preparation protection (read work product ) for all communications between an attorney and a retained expert.

5 II. COUNSEL COMMUNICATIONS WITH EXPERT (Cont ) 3. Exceptions: a. Anything related to compensation is (still) discoverable. b. Facts or data provided by counsel and considered by expert are discoverable. i. Considered in construed as related to the subject matter of the expert report. c. Assumptions provided by counsel and relied upon by the expert are discoverable. i. Note: Only subject to disclosure if actually relied upon. Thus, counsel may explore a number of potential assumptions, many of which the expert ultimately does not rely upon, and thus, need not be disclosed. d. For both of these last two exceptions, expert only has to identify the facts or data considered, or assumptions relied on. The Advisory Committee Notes indicate clearly that this is not intended to require extensive disclosure of all the details of the back and forth. 4. House Counsel vs. Trial Counsel? a. Advisory Committee commentary indicates that a party s attorney is intended to be factually, liberally construed to cover house counsel, as well as other counsel involved in related cases that may also be going on.

6 III. DRAFT EXPERT REPORTS A. Draft expert reports are no longer discoverable. 1. New Rule 26(b)(4)(B) provides express work product protection for drafts of any expert report or non-retained expert disclosure, regardless of form in which it is recorded. (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.

7 IV. SUMMARY DISCLOSURE FOR UNRETAINED EXPERTS A. New Rule 26(a)(2)(C) (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. 1. For expert witnesses who do not provide written report. a. Treating Physicians b. Employee of a party, or party him/herself, who will testify with specialized expertise. (e.g., CFO of a company who is also a CPA, testifying as to whether certain records are prepared in compliance with GAAP.) 2. Requires a counsel-prepared disclosure setting forth subject matter on which the expert will testify and a summary of the facts and opinions to which he/she will testify.

8 IV. SUMMARY DISCLOSURE FOR UNRETAINED EXPERTS (Cont.) 3. Deadlines as set by Court in pre-trial orders. a. Should be addressed as a line item when counsel prepare proposed scheduling orders and discovery plans. b. May also consider addressing situation where a party seeks to depose a non-retained expert after a disclosure, when the individual was already deposed in fact discovery. Rule 30(a)(2)(A)(ii) requires leave for a second deposition. Consider putting in scheduling orders that if a person is the subject of such disclosure, they may be deposed without leave to extent disclosure identifies subject matter not addressed in prior deposition. *Acknowledgment to Greg Joseph presentation to ABA Section of Litigation, from which this substance and organization of material is largely derived.