With reason, non-Americans tend to be wide-eyed at the extent to which U.S courts require affirmative disclosure of potentially relevant documents and facts – and at the cost these discovery procedures routinely entail. One change just announced, however, represents a bit of retrenchment that will make handling construction disputes in U.S. Federal courts a bit less challenging. Specifically, a party will no longer need to disclose all communications with its retained expert witnesses, along with the experts’ draft reports, per a rule change scheduled to take effect on December 1, 2010.

Under current Rule 26 of the Federal Rules of Civil Procedure, all communications between legal counsel and a testifying expert who has been specifically retained to provide expert testimony, as well as drafts of that expert’s report, are subject to discovery by the opposing party. It is routine, not surprisingly, for the opposing party to request these documents. This then leads
lawyers and their testifying experts to go to great lengths to communicate in a manner that does not create a discoverable record, often at considerable expense and loss of efficiency. For example, substantive discussions about complicated and highly technical issues are limited to oral conversations, and the expert takes no contemporaneous notes. E-mails are similarly confined to purely administrative matters. Drafts of the expert’s report are not prepared. Sometimes, a duplicative “consulting” expert who will not testify has to be hired to provide assistance on issues where, if the testifying expert gets involved, the associated communications would all have to be produced. All this makes the process of retaining experts more costly and less efficient, and puts parties who cannot afford duplicate experts at a disadvantage.

This is all about to change, as the U.S. Supreme Court has recently approved amendments to Rule 26 that significantly alter current practice. (Congress can alter or block the amended rules, but this is not expected).

Under new Rules 26(b)(4)(B) and (C), most communications between the attorney and a testifying expert, as well as drafts of that expert’s report, will be covered by the work-product privilege and will no longer be subject to broad discovery rights. This will permit the attorney and the expert to communicate more freely about substantive issues, without the fear of those communications being obtained by the opposing party. The new rule has three exceptions, however: 1) the expert’s compensation; 2) the facts or data provided by the attorney and that the expert considered; and 3) the assumptions that the attorney provided and that the expert relied on; must all still be disclosed.

Another change relates to expert witnesses who are not required to provide a written report stating their opinions, because they are not retained or specially employed to provide expert testimony. Such “non-retained” experts are often used in construction disputes because project personnel are often subject matter experts, and therefore are permitted to testify as “hybrid” witnesses who provide factual testimony about events on the project, plus opinion or expert testimony in their specific area of expertise. While these experts do not need to provide a report, the rule changes include a new requirement to disclose the subject matter on which the witness is expected to testify as an expert, and to provide a summary of the facts and opinions that the witness is expected to offer. Draft versions of these disclosures, however, will be protected to the same extent as draft reports by “retained” experts. The revised portions of the Rules of Civil Procedure that will become effective December 1, 2010 can be found at:

http://www.supremecourt.gov/orders/ordersofthecourt.aspx

Todd Wagnon
Andrew Ness

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