During the past year, the Judicial Conference’s Advisory Committees on Appellate Rules, Bankruptcy Rules, Civil Rules, Criminal Rules, and Evidence Rules has been seeking public comment on several proposed rules amendments. Of particular interest to BV experts are the two distinct proposals to amend Rule 26 of the Federal Rules of Civil Procedure (FRCP), according to the Advisory Committee’s preliminary draft:
The first deals with expert witnesses who are not required to prepare a detailed report under Rule 26(b)(2)(B). Under the proposed amendment to Rule 26(a)(2), the party (not the expert witness) must disclose the subject matter of the expected expert testimony and a summary of the expected facts and opinions. The second topic applies the work-product protections of Rule 26(b)(3)(A) and (B) to limit discovery of drafts of expert disclosure statements or reports and, with three exceptions, of communications between expert witnesses and counsel regardless of form (oral, written, electronic, or otherwise). The exceptions are for those parts of the attorney-expert communications regarding compensation, identifying facts or data considered by the expert in forming the opinions, and identifying assumptions relied on by the expert in forming the opinions.
Public comments to the proposed amendments closed on February 17, 2009. On that date, the AICPA’s Forensic and Litigation Services Committee submitted its official comments endorsing the rule changes, for three primary reasons:
- The proposals would increase collaboration among attorneys and testifying experts, without adding the extra expense of hiring a consulting expert (whose work is “not as easily discoverable”).
- The changes would help reduce the “extraordinary expense” incurred by litigating parties. “Much of the discovery requested or demanded about the expert’s process(es) and development of his or her opinions does not result in relevant information that can assist the opposing party or the trier of fact,” the AICPA says. “The proposed amendments…appropriately limit discovery to the final opinion of the expert rather than the evolution of the thought process.”
- The recommended exceptions to the Rule 26 amendments (regarding disclosure of expert compensation and attorney-provided facts or data that went into the expert’s ultimate opinion) “provide additional assurances that appropriate information will continue to be discovered.” To read the proposed amendments plus public comments, click here.
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