January 24. 2011 | Lindsay Dattilio

Benefits to Rule 26 Amendments

As previously discussed, Rule 26 of the Federal Rules of Civil Procedures was amended December 1, 2010. Under Rule 26, attorney work product and communications between attorney and expert witnesses were discoverable to other parties. The amendment restricts, and nearly eliminates, discoverability of all work papers and communications.

Attorneys would go to great lengths to protect their draft reports and would attempt to only communicate verbally to avoid creating any drafts. Law firms over the years have become more creative in their ways to get around this rule. It was even common to hire two experts – one to prepare the work and develop opinions and another to give the actual testimony. They would conduct their practices in a manner that would avoid creating any types of draft reports, which would be susceptible for viewing the other party. Law firms are seeing this change as an excellent way to cut costs, as they can eliminate these wasteful and burdensome practices. Rule 26 now protects these reports and communications from discoverability. Fortunately, Rule 26 has been extended to not only the expert themselves, but any employees or assistants involved with the case.

Of course, it is recommended that attorneys and experts still use good judgment when using communications, and to remember that Rule 26 does not afford one hundred percent confidentiality with respect to work product. Also, exactly which engagements the new rule will apply to is still up in the air. It has yet to be decided if discoverability of all communications and drafts are protected as of December 1 or for specific engagements beginning on that date, or if it only applies to charges filed after that date. We only know for certain the amendments are not applied retroactively.

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