As of December 1, 2010, amendments to the Federal Rules of Civil Procedure increase the likelihood that echoes of attorney voices will be heard in expert reports and testimony in federal court.
Until now, good attorneys exercised extreme caution in their communications with testifying experts, because the content of those communications were subject to discovery by the opposing party. Also, notes and draft reports of testifying experts were discoverable. Accordingly, attorneys often urged experts not to take notes or prepare draft reports. That, necessarily, hindered the experts’ investigation and opinion formation.
The newly amended Rule 26 of the Federal Rules of Civil Procedure now generally excludes from discovery draft reports of testifying experts, as well as attorney-expert communications. With this, testifying experts can exercise greater freedom in recording the development of their opinions, and attorneys are more free to communicate with experts and suggest changes to expert reports.
The natural consequence of this is that attorneys will play a more active role in the formation, modification, and disclosure of expert opinions in federal litigation.
