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How the Latest FRCP Changes Should Put Experts on Notice

The Federal Rules of Civil Procedure (FRCP) is a set of regulations that specify procedures for civil legal suits within United States District Courts. Federal district courts in all fifty states are required to follow these rules, and many state courts’ civil procedural rules closely follow or adopt similarly worded rules. Currently there are 86 rules in the FRCP, which are grouped into 11 chapters.

These rules are periodically amended, and in December 2006 these rules underwent significant changes that addressed the following issues (over simplified):

  • Formally recognized Electronically Stored Information (ESI).
  • Requires the parties to address ESI early in the discovery process (e.g., during the “meet and confer” phase)
  • Addresses the format of production of ESI, and permits the requesting party to designate the form or forms (e.g., native file formats) in which it wants ESI produced.
  • Addresses discovery of ESI from sources that are not reasonably accessible.
  • Establishes the procedure for asserting claim of privilege or work product protection after production (i.e., “claw back” provisions).
  • Incorporates a “safe harbor” limit on sanctions for the loss of ESI as a result of the routine operation of computer systems.
  • Includes sanctions that a court can impose (e.g., spoliation of ESI)
  • Allows discovery from Non-parties.

How the Latest FRCP Changes Should Put Experts on NoticeThe 2006 amendments moved the U.S. courts into the digital age rather abruptly, but not without some growing pains. Many lawyers and judges still struggle with issues associated with ESI as well as electronic discovery. Case law has helped address some of the initial issues and confusion, but further adjustments to the Rules may be necessary.

Speaking of amendments to the FRCP, the U.S. Supreme Court ratified proposed changes to the FRCP in July 2010; since Congress did not intervene, the changes went into effect on December 1, 2010. These latest amendments were not nearly as earth-shattering as the 2006 amendments, but for security professionals and other experts, they are worth noting.

In a nutshell, the Committee on Rules of Practice and Procedure, which proposed the amendments, expressed that the existing Rule 26 (Duty to Disclose; General Provisions Governing Discovery) “inhibits robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion.” The amendments restore protections to certain aspects of the communications between experts and retaining counsel.

To digress for a moment, the form of the Rule 26 was established in 1993, which was amended at that time to eliminate the prior regime that had provided work product protection to testifying experts. Under the Rule 26(a)(2) and prior to December 2010 amendments, a testifying expert witness’ report was required to contain data “or other information” considered by the witness in forming his opinions.

Many courts interpreted this language broadly, holding that conversations between counsel and testifying expert witnesses were discoverable, and requiring the production of attorney work product (even opinion work product) if given to a testifying expert witness. Some courts also held that disclosure of documents protected by the attorney-client privilege to a testifying expert witness waives the privilege. In response to these rulings, many counsel and experts developed practices to shield information from discovery such as using two sets of experts (one testifying, one not) and refraining from creating draft reports or other written work product (i.e., highly inefficient and potentially costly approaches).

Under the new amended Rules, there are two kinds of testifying expert witnesses:  1) witnesses who are “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony,” and 2) witnesses who are not retained for the purpose of providing testimony but are otherwise qualified to offer expert opinions, such as treating physicians. The former are required to provide a written report, while under the new rules counsel must provide a more limited statement regarding the subject of the latter’s testimony. Communications between counsel and expert witnesses who are required to provide a report will be generally protected. Note that this protection applies to communications regardless of form.

For experts who are not required to provide a written report, under the new FRCP Rule 26(a)(2)(C), counsel must state the subject matter and summarize the facts and opinions to which an expert is expected to testify. This revision is designed to prevent a party being ambushed by an unknown expert opinion, as well as reduce the likelihood that courts will require a full written report from such experts.

Under the new FRCP Rule 26(b)(4)(B), the work product protection applies to drafts of written reports as well as drafts of the disclosure for other expert witnesses required under FRCP Rule 26(a)(2)(C). All experts will be required to disclose information with respect to:

  • Compensation received (including communications associated with the expert’s compensation).
  • Communications identifying facts or data considered by the expert are not protected. However, other conversations about the potential relevance of those facts are protected.
  • Communications identifying assumptions provided by an attorney are not protected if the expert actually relied upon them. Communications about general hypotheticals or other assumptions that the expert does not rely upon are protected.

The ABA’s website contains a red-lined version of the prospective Rule 26 for those seeking more information.

On the surface, these amendments should be good for experts, but it will be interesting to see how the legal community uses them. Do you think this will cut out some of the current inefficiencies?

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Eric Hibbard

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