One of the great things about the current rule-making process is the ability to see change on the horizon and adapt accordingly. This year, absent any unforeseen objection or delay, Rule 26 will be amended to extend the scope of the work-product doctrine to encompass draft expert reports and most communications between experts and counsel. Currently, the proposed amendment (and all proposed rule amendments, for that matter) is being considered by the Supreme Court. Pursuant to statute, the Court must transmit prescribed amendments to Congress by May 1st. Thereafter, absent legislation to reject, modify, or defer the rules, the prescribed amendments will take effect as a matter of law on December 1st.
The proposed amendment to Rule 26 would “apply work-product protection to the discovery of draft reports by testifying expert witnesses, and, with three important exceptions, communications between those witnesses and retaining counsel.” The exceptions would allow for discovery of communications between the lawyer and expert regarding: “(1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinion; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.”