New rules in federal court for expert witnesses

Effective December 1, 2010, there have been major changes to the rules governing expert witnesses and discovery in bankruptcy courts and federal courts.  As those of us who are involved regularly in litigation in federal courts know, this is very significant.

The major changes are

• 1.       Draft expert reports for “retained experts” are no longer discoverable “regardless of the form in which the draft is recorded”. This implies that the draft needs to be recorded in some form. Q. is a purely oral draft report discoverable?
•            Each party has to provide disclosures about the expert under rule 26(a)(2). Drafts of such disclosures are no longer discoverable the same as draft reports.
•            Communications between a party’s attorney and an expert are protected “regardless of the form of the communications, except to the extent that the communications:
• (i) relate to compensation for the expert’s study or testimony;
• (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
• (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
• The commentary to the rule proposal makes clear that exceptions (ii) and (iii) are intended to be narrowly construed, and are not to include discussions of the relevance or import of particular documents or facts. This will be an area of controversy as the courts apply the rule changes.
• There is a new requirement for more limited disclosure by persons who will provide expert testimony but who are not “retained or specially employed” to provide expert testimony. This could include a party, a spouse, a debtor, a friend or an employee who could give expert testimony. A common example is where a party testifies as to market value of her property or an employee testifies as to a company's viability or the feasibility of a plan or proposal as part of the plan confirmation process. These types of experts must disclose
• (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
• (ii) a summary of the facts and opinions to which the witness is expected to testify.

Here is a link to the text of the rule: Rule 26 text . Here is the advisory committee report with commentary showing in blackline the changes made to the rule and other rules: Proposed rule revisions commentary and blackline (may need Wordperfect to open)

For those of us who regularly practice in federal courts or bankruptcy courts or provide expert testimony there, this is a major and largely welcome development.