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Expert Witness Discovery and the Increased Protection Afforded by the 2010 Amendments to Federal Civil Rule 26

By Bret C. Perry, Esq.

In December 2010, Federal Civil Rule 26 was amended to address many of the problems surrounding expert disclosure and discovery. These changes under Rule 26 included, in part:

  1. Amending Rule 26(a)(2) to limit the information expert witnesses must disclose to the "facts or data considered by the witness in forming" opinions. The revised language is narrower than the prior disclosure of all "data or other information" considered in forming an opinion, in an effort to limit disclosure.
  2. Amending Rule 26(b)(4) to provide work-product protection to draft reports and attorney-expert communications (subject to three exceptions) to ensure that lawyers may freely interact with experts without disclosing the communications.

These amendments are designed to prevent and limit the extent to which opposing counsel can discover attorney-expert communications and draft reports, which was permitted under prior versions of the Rule. The ultimate intent of the amendments are to significantly limit the amount of information expert witnesses are required to disclose.

Importantly, the amendments to Rule 26 will provide work-product protection against discovery of draft expert reports and attorney-expert communications, and are designed to allow lawyers to work with testifying experts without exposing those communications. Rule 26(b)(4) will expand work-product protection to draft expert reports and attorney-expert communications, with the exception of: (1) expert compensation, (2) facts and data that the expert considered in forming opinions and (3) assumptions that the attorney provided and upon which the expert relied in forming his or her opinions.

Amended Rule 26 will strike a balance between the disclosure necessary for the parties to develop their cases and the burdens and expense of broad discovery obligations. The committee notes that accompany the amended Rule 26, provide specific guidance to ensure much of the information shared between attorneys and expert witnesses is protected from discovery with the express goal of encouraging the free flow of information to allow both experts and attorneys to better perform their important roles.

The effect of the amendments to this Rule is significant to lawyers practicing in areas requiring substantial expert witness involvement such as medical malpractice, long-term care litigation, product liability, drug and device defense and toxic tort defense to only name a few. Before the amendments, Rule 26 had been interpreted to require reports from all witnesses offering expert testimony, and to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. This strict requirement resulted in lawyers and experts taking elaborate steps to avoid creating a discoverable record, thereby needlessly wasting time and expense in an effort to prevent the discovery of communications and draft reports.

As duly noted by Judge Lee Rosenthal, Chair of the Judicial Conference Committee on Rules of Practice and Procedure, "the artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts-one for consultation, to do the work and develop the opinions, and one to provide the testimony-to avoid creating a discoverable record of the collaborative interaction with the experts."

While the wholesale protections afforded pursuant to Federal Civil Rule 26 have not been adopted in sum by the Ohio Supreme Court, practitioners should be cognizant of the protections afforded by way of the Ohio Rules of Civil Procedure and judicial interpretation in order to protect from disclosure of vital attorney-expert communications. In Ohio, Civ.R. 26(B)(3), commonly referred to as the work-product doctrine, provides that "a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or trial by or for another party or by or for that party's representative *** only upon a showing of good cause therefor." In conjunction, Civ.R. 26(B)(4)(b) provides that the party may then "discover from the expert or the other party, facts known or opinions held by the expert which are relevant to the stated subject matter." The policy behind Ohio's discovery rules is "to preserve the right of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases" and "to prevent an attorney from taking undue advantage of his adversary's industry or efforts." Civ.R. 26(A).

In 2005, Helton v. Kincaid (12th App.), 2005-Ohio-2794, addressed the issue of attorney-expert communications stating, as follows:

"It is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. A bright-line rule requiring discovery may encourage counsel to withhold material from an expert which may hamper the expert in forming opinions. The policy reasons supporting the bright line rule are not compelling and ignore the policy considerations that compel protection of core work product."

The Helton court held that "letters from an attorney to an expert are protected under the work-product doctrine and are not discoverable absent a showing of good cause as provided in Civ.R. 26(B)(3)." The Helton court concluded that the facts known and the opinions held by the expert are discoverable; nonetheless, the communications between an expert and attorney are protected work product and immune from discovery.

The amended language of Federal Civil Rule 26 is narrower in scope; thus, providing increased protection to work product information. The explicit limitations now afforded by Rule 26 prevent expert's draft reports from being discoverable, thereby promoting efficiency and cost-saving measures over the course of litigation. While the state courts of Ohio have not unanimously adopted this new language, the Helton decision, supra, arguably provides similar protections, potentially bridging the gap between the current state of Ohio Civil Rule 26 protections and the time the Supreme Court of Ohio uniformly adopts the amended language of Federal Civil Rule 26.