February 2010

On September 15, 2009, the Judicial Conference approved rule changes under federal Rule 26 regarding expert reports and the discoverability of communications with expert witnesses. The rule changes have been submitted to the U.S. Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling Act.

The Judicial Conference’s December 16, 2009 report to the U.S. Supreme Court summarized the change in expert witness discovery as follows:

“The proposed amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.”

The amendments would greatly expand work-product protection to the discovery of draft reports and related communications between testifying expert witnesses and retaining counsel. Under proposed Rule 26(b)(4)(C), the following three exceptions are still discoverable:

  1. Compensation for the expert’s work;
  2. Facts and data provided by the attorney that the expert considered in forming opinions; and
  3. Assumptions provided by the attorney that the expert relied upon in forming opinions.

The bench and bar overwhelmingly support these expert witness Rule 26 changes. Organizations that endorsed the rule include the American Bar Association, American College of Trial Lawyers, Defense Research Institute, American Association for Justice, Federal Magistrate Judges’ Association, and the U.S. Department of Justice. Although the changes limit expert discovery, most believe that the current system creates substantial costs and yields little useful information because lawyers and experts simply change their communications to not generate anything written that would be subject to discovery. By allowing more efficient and less guarded communications, the change is expected to reduce costs.

Because of this broad support, the U.S. Supreme Court is widely expected to approve the amendments by May 1, 2010 and submit them to Congress. Unless Congress specifically rejects the rules (again, this is highly unlikely), the rule changes will take effect on December 1, 2010.

Since the 1993 rule amendments (i.e., as currently written), most court cases on this subject allowed discovery of draft expert witness reports and all communications between legal counsel and testifying expert witnesses. For example, the Sixth U.S. Circuit Court of Appeals (Regional Airport Authority of Louisville and Jefferson County vs. LFG, LLC, No. 05-5754, August 17, 2006) ruled in favor of disclosure, and explained the case authority as follows:

“Prior to 1993, there was general agreement that Federal Rule of Civil Procedure 26 excluded categorically the discovery of attorney opinion work product, even when provided to testifying experts. … In 1993, however, Rule 26 was amended to require parties to submit expert reports for all testifying experts. … Since the amendments, two lines of cases have formed regarding protections of work product associated with those experts. The first holds that attorney work product is not discoverable merely because it is shared with a testifying expert. (Citations omitted) The second holds that Rule 26 creates a bright-line rule requiring disclosure of all information provided … A majority of courts that have considered the matter, including the only court of appeals to have done so, relies mostly on statements in the Advisory Committee Notes in holding that Rule 26 as amended creates a bright-line rule requiring disclosure of all information provided to testifying experts.”

The Sixth Circuit did not have before it any question of draft reports, so the case is not helpful for that portion of the proposed rule changes.

A relatively recent contrary case is University of Pittsburgh vs. Townsend, et al. (2007 WL 1002317 E.D. Tenn.). Here, the defendant sought to exclude the testimony of two expert witnesses based on claims of evidence spoliation. The Townsend case facts are common. Specifically:

  1. The experts at issue had not retained previous drafts of their reports, as work occurred on only one electronic copy.
  2. The experts emailed employing legal counsel with drafts of the reports.
  3. Employing counsel emailed the drafts back with revisions. Such revisions consisted of adding Bates numbers, correcting typographical errors, and adding specifically identifiable footnotes providing legal citations. The experts described all changes as stylistic and not substantive. One of the experts was also asked to (i) remove a report section that addressed a specifically-identifiable subject not at issue in the case, and (ii) add a specifically identifiable additional issue that was contained in the final report.
  4. Emails between the experts and employing counsel were not retained. This occurred because of legal counsel’s instruction or suggestion that the experts destroy such communications.
  5. A subpoena was issued “regarding the experts” depositions. No documents were destroyed once the subpoenas were served.

Even without the current rule changes, the Court addressed the obligations of experts to retain documents, as follows:

“Contrary to the defendants’ assertion, the Court does not read Rule 26(a)(2) to impose an affirmative duty upon an expert to preserve all documents, particularly draft reports, and the defendants do not cite any support for such a sweeping obligation. Nor does Rule 26(a)(2) require that draft reports be disclosed as part of any expert disclosure.”

Prior to University of Pittsburgh vs. Townsend , the most commonly cited cased in this area was Trigon Insurance Company vs. United States (277 F.R.D. at 240, E.D. VA 2001). The Trigon Court addressed whether expert reports are discoverable once the draft reports are shared with legal counsel or others outside the expert’s firm. Importantly, the Trigon case did not require the expert to disclose any draft prepared internally while the expert was formulating conclusions. However, the Trigon Court did require that drafts shared with legal counsel be produced.

The Trigon case may have been a situation where bad facts equals bad law, since the expert report was ghost written for the expert witness by a combination of legal counsel and consulting (non-testifying) experts. Unlike the Townsend situation described above, the expert in Trigon was unable to testify specifically regarding the process by which others (including legal counsel) had written the report. Accordingly, the Trigon Court concluded that the expert was “an alter ego of the attorney who will be trying the case.” Because of spoliation of the ghostwritten draft reports, the Court allowed the expert to testify, but gave an adverse inference instruction as to the substance of the report and the credibility of the expert who had allowed his report to be ghost written.

As noted in the Judicial Conference’s summary quoted at the beginning of this article, certain experts who do not issue reports will require an attorney-prepared summary of expected testimony. Common examples of such experts are attending emergency physicians, coroners, and government accident investigators. These experts are called upon as witnesses, but are often not employed by the parties.

Fulcrum Inquiry regularly provides expert testimony on damages analysis, business appraisals, and financial investigations.