Legal View: Expert witness preparation after the 2010 amendments to Rule 26

By W. William Hodes The Daily Record Newswire Rule 26 of the Federal Rules of Civil Procedure, which broadly addresses the scope of permissible discovery and the basic rules of the road, has been thoroughly overhauled several times and tweaked almost continuously since its original inclusion in the Rules in 1938. Because so much of modern litigation involves "pre-trial" skirmishing for trials that never actually take place, even minor adjustments to Rule 26 tend to have a disproportionately large impact on the work of litigators. The most recent amendments, which Congress permitted to go into effect on Dec. 1, 2010, are designed to provide work product protection for most communications between lawyers and "retained or specially employed" expert witnesses preparing to testify in deposition or at trial. These recent tweaks will certainly allow litigators to prepare their expert witnesses more effectively, more efficiently and at reduced cost to clients. But the new Rule 26 will probably also open the door to some unlovely coaching and steering of expert witnesses. Thus, whether the 2010 amendments are on balance salutary is something of an open question. Since 1970, the rules regulating discovery have distinguished between experts who are expected to testify and those who are not. Testifying experts are further subdivided into those who have and have not been "retained or specially employed" to give testimony -- counting employees of a party who provide expert testimony as part of their regular duties as within the first group. Testifying experts who have not been "specially retained" are typically employees who have expert knowledge, but who are also participant or percipient witnesses, such as a company's chemical engineer who happened to be on duty when a toxic spill occurred, or a hospital's staff physician who observed some untoward events in the emergency room. The 2010 amendments to what are now Rules 26(a)(2)(B) and 26(a)(2)(C) not only make the above distinction explicit, but impose different protocols for the expert disclosures that must be made (regardless of whether the opposing side has asked for the information in discovery). Retained testifying experts are required to provide an elaborate, signed report, including the basis and reasons for the opinions they will express, and a list of "the facts and data considered by the witness" in forming those opinions. A party planning to call an expert who has not been specially retained, however, is not required to submit such a report -- instead, it must only provide a brief statement showing the subject matter of the testimony and a summary of the facts and opinions to which the witness will testify. The detailed report has long been required of retained experts, but the pre-amendment rule required disclosure of "data or other information" that was considered by the expert. This "other information" was routinely held to include theories about the case and analysis that the lawyer had provided to the expert, thus intruding on the lawyer's thought processes and weakening the work product protection through a side door. That door was closed in 2010 when the disclosure was limited to "facts and data" considered by the retained expert, as noted above. More direct protection of work product in connection with the preparation of expert witnesses was provided in amended Rule 26(b)(4). In the past, opposing parties almost always demanded to see all communications between attorneys and the experts they retained, plus interim drafts of expert reports. The 2010 amendments now provide that all drafts (whether or not shared with the retaining lawyer) are protected from disclosure or discovery by the work product rule. More important, the work product rule now protects all communications between the lawyer and the expert, with three sensible exceptions: communications about the expert's compensation, communications that identify facts or data that the expert considered, and communications identifying the assumptions that the lawyer provided and that the expert agreed to rely on. Ever since the major 1993 overhaul of Rule 26, when detailed expert reports were first required, and pre-trial depositions of expert witnesses became common, lawyers began to sink significant resources into a preliminary round of discovery before expert depositions, in which opposing counsel sought to learn as much as possible about how the witness formed his opinions, whether he had changed his initial opinions and what input the lawyer had in shaping the final product. This was enormously costly, and also negatively affected the quality of the expert's work and the ability of the lawyer to make the best use of the expert. Because opposing counsel would attempt to learn the lawyer's strategies by culling through lawyer-expert communications and would attempt to make something sinister out of every change in nuance and every editing suggestion, communications would be oral only, drafts would not be exchanged, and experts would take as few notes as possible. In major cases, lawyers would engage two experts on each subject matter -- one for consultation in private and without exposure to discovery, and the other to testify. The 2010 amendments to Federal Rules 26 have eliminated this difficulty. One of the most important things that a retained, testifying expert can bring to the table is insight into how his expertise can best be harnessed; in other words, as a consultant, the same expert can educate the lawyer about the technical aspects of the case, and even help the lawyer plan his direct examination. Because these exchanges, and much more, will now be shielded from the prying eyes of the opposition, preparation for both deposition and trial can go forward without any holding back or circumlocution. On the other hand, it is not fanciful to imagine that some lawyers and some experts will take advantage of their new-found zone of privacy to press beyond robust preparation into coaching and manipulation. For example, while it is perfectly proper for a lawyer to suggest changes in the wording of an expert's draft report, to make it more effective and more on-point in terms of the underlying legal doctrine, a lawyer might be tempted to go further. The line is murky, but there is a point at which suggestions become actual changes in a too-compliant expert's opinions. A lawyer's fervent "hope" that the expert holds a particular opinion can become the expert's actual opinion -- at least for purposes of the written report that must be turned over to the other side. Ultimately, the best palliative for this kind of manipulation is the same as it usually is in litigation: rigorous cross-examination. Although opposing counsel will not have the benefit of shape-shifting drafts and cajoling e-mails, he will still have access to the expert's prior opinions in other cases or other writings, and will still be able to insist that the expert explain and justify, orally and in real time, whatever appears in the final written report. ---------- William Hodes is a solo practitioner who specializes in legal ethics and the law of lawyering. Based in Indianapolis, and Lady Lake, Fla., he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. Hodes's website is www.hodeslaw.com. Published: Tue, May 3, 2011