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John K. Rabiej On The 2010 Amendments To Rule 26 Of The Federal Rules Of Civil Procedure

Important amendments to Rule 26 of the Federal Rules of Civil Procedure became effective Dec. 1, 2010. The amendments extend work-product protection to the discovery of draft reports by a testifying expert witness and, with three important exceptions, to the discovery of communications between a testifying expert witness who is required to provide a report under Rule 26(a)(2)(B) and retaining counsel.

This commentary by John K. Rabiej, chief of the Rules Committee Support Office of the Administrative Office of the United States Courts, analyzes these changes. He writes:

"The amendments to Rule 26 primarily address two features of disclosure and discovery of trial-witness experts. First, Rule 26(a)(2)(C) relieves an expert witness, who is not required to provide a report under Rule 26(a)(2)(B), from an obligation to submit an extensive report. Instead, the amended rule requires the expert only to state the subject matter and summarize the facts and opinions to which the expert is expected to testify.

"In addition, Rule 26(a)(2)(B)(ii) requires any trial-witness expert who must submit a report to state the facts or data, but not 'other information' as in the current rule, considered by the expert in forming an opinion. Second, Rule 26(b)(4)(B) and (C) extend work-product protection to the discovery of a draft report by an expert witness and, with three important exceptions, communications between the expert witness and retaining counsel. . . .

"The advisory committee considered, but declined, to extend work-product protection to communications between counsel and a witness who is not retained or specially employed to provide expert testimony or whose duties do not regularly involve giving expert testimony, e.g., an employee with particular knowledge or expertise, a treating physician, or accident investigator. The committee concluded that extending the protection to such in-house expert witnesses or treating physicians could be too broad, and they were concerned about unforeseen consequences."

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