Important Changes to the Rules Governing Communications Between Experts and Attorneys Are Upon Us
CPAs that serve as testifying experts in Federal Court are subject to Rule 26 of the Federal Rules of Civil Procedure. Barring unforeseen events, on December 1, 2010, Rule 26 will be updated by several important amendments. The AICPA has supported these amendments as likely to enhance the ability of experts to "collaborate with counsel to develop and refine theories and opinions". The AICPA’s position is similar to the Committee on Rules of Practice and Procedure (the "Committee"), which proposed the amendments. For example, the Committee expressed that the existing Rule 26 "inhibits robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion." Numerous other parties knowledgeable about the litigation process have also endorsed the amendments, including, the American Bar Association (the "ABA"), the American College of Trial Lawyers, and the U.S. Department of Justice.
A Before and After Comparison of Rule 26
The form of the existing Rule 26 was established in 1993. It was amended at that time to eliminate the prior regime that had provided work product protection to testifying experts. Interpretations of Rule 26 since 1993 have evolved towards the total discoverability of communications between testifying experts and retaining counsel including, draft reports, e-mails, meeting notes, and discussions. The forthcoming 2010 amendments intend to strike a balance between these two extremes by restoring protection to certain aspects of the communications between experts and retaining counsel. The table below provides a summary of the critical changes:
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Amendment To:
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Existing Rule
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December 2010 Amendments
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Intended Change
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Drafts of expert reports
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Virtually all drafts shared with counsel are discoverable regardless of form.
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Drafts are generally no longer subject to discovery.
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More refined and persuasive reports as well as the reduction or elimination of time spent examining an expert about the development of opinions.
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Communications with counsel
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Virtually all communications are discoverable.
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Protected regardless of form with three exceptions (see bullets below this table).
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Reduce or eliminate the need to avoid the creation of a discoverable record, including retention of both testifying and consulting experts.
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Information Considered by an expert
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Experts were required to disclose "Data or other information" considered.
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Experts will be required to disclose only "Facts or data considered."
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The broad interpretation of "other information" will be limited.
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Nevertheless, once the amendments become effective, experts will be required to disclose information with respect to:
- Compensation received,
- or data considered that were provided by counsel, and
- Assumptions relied upon that were provided by counsel.
Experts will also continue to be subject to all of the other Rule 26 requirements including, for example, the disclosure of a compete statement of opinions to be provided at trial, the witness’ qualifications, and prior testimony. The ABA’s website contains a red-lined version of the prospective Rule 26 for those seeking more information (see http://www.abanet.org/litigation/committees/expertwitnesses/docs/1008_rule26.pdf).
Implementation Considerations for Experts
Experts should not rely on the protection of these new amendments to open the floodgate to unabated communication with retaining counsel. Opposing counsel will continue to retain some avenues to discover communications between experts and retaining counsel although the Committee recommended that these avenues be restricted to rare use, for example, due to "undue hardship." Accordingly, as before, it will continue to be important for experts to exercise good judgment and educate their professional staff as the amendments are implemented.
It should also be noted these amendments will not be implemented retroactively. This will invariably lead to testing of the waters as to the specific implications of the changes. For example, it is not yet clear whether the amendments will limit discovery of all communications and drafts after December 1, 2010, or perhaps only for engagements commenced after that date, or whether it be effective only for matters with respect to complaints filed after that date. Practitioners may consider updating their engagement letters to incorporate any changes in practice. In addition, the new Rule 26 language protects "communications between the party’s attorney and any witness required to provide a report." Thus, communications with third parties to a matter such as other testifying experts may remain subject to discovery. Finally, it will also continue to be important for an expert to be familiar with any nuances in the venue of the current matter – particularly for matters not in Federal Court. Accordingly, it will continue to be important to consult with retaining counsel as to how the amendments will be enacted in any given matter. These communications are, after all, in the spirit of the 2010 Rule 26 amendments.
To further develop our understanding of implementation considerations, the FVS Section consulted with attorneys regarding the Rule 26 discovery transition. To read the Q&A, go to Rule 26 Discovery Transition - A View From the Legal Community.