Neither Side Will Be Entitled to Discovery of Communications with Counsel or Draft Expert Reports.
The parties can greatly reduce the cost of expert work and discovery by agreeing that communications between experts and counsel, as well as draft expert reports, are not discoverable. The preparation of expert reports is not nearly as time-consuming when experts and attorneys can freely communicate in writing.
We have been proposing this agreement for years, and the federal rules are now catching up. Under new Fed. R. Civ. P. 26(b)(4)(B), effective December 1, 2010, draft reports are protected as work product unless they are otherwise discoverable under the catch-all discovery “scope” provision of Rule 26(b)(1) or, under Rule 26(b)(3)(A)(ii), the party seeking production shows that it has “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” And under new Rule 26(b)(4)(C), attorney-expert communications are protected except to the extent that they (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.
Many state court systems do not yet have equivalent rules, but in the few months since the new federal rule became effective, we have found that state-court litigants often are willing to agree by stipulation to apply the common-sense federal rule to their cases.
Even with the federal rule in place, it may make sense in some cases to get a broad stipulation that draft reports and attorney-expert communications are not discoverable. Such a stipulation can give the parties more assurance that the opposing side will not prevail with an argument of “substantial need” to see communications or drafts, and that the opposing side will not seek production based on a broad reading of the exception for communications that identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed.