Last week’s BVWire covered a controversial Canadian ruling that curtailed counsel’s review of expert draft reports. It raises the issue of Rule 26 of the Federal Rules of Civil Procedure, applicable in U.S. federal courts. How does it protect draft reports and expert-attorney communication?

Rule 26 was amended in 2010 to simplify discovery obligations, limit disclosures, and protect the attorney’s thoughts, opinions, and mental impressions (work product). The prior version of Rule 26(a)(2) required full disclosure of “the data or other information” “considered” by the expert. Many courts interpreted that language very broadly, finding that conversations between experts and attorneys—as well as the expert’s draft reports—fell under the category of “other information.” The amendments require only disclosure of “facts or data” considered by the expert. But courts have been slow to provide guidance as to the scope of protection, leaving experts and attorneys with a sense of confusion.

Expert reports: Rule 26 (b)(4)(B) protects drafts of expert reports “regardless of the form in which the draft is recorded.” But commenters point out that there is no consensus among courts about what constitutes a nondiscoverable draft expert report. Some courts have ruled that an expert’s notes, memos, lists, and outlines are discoverable because they are not strictly speaking “draft” expert reports. Others have considered them parts of the draft, which can be in any form, and protected them. Or they have said that discoverable “facts or data” do not mean everything the expert needs to do his or her analysis.

Expert-attorney communication: The rules now protect all communication between counsel and testifying experts, “regardless of the form of the communication.” But they still permit discovery of: (1) communications related to the expert’s compensation; (2) communications that "identify facts or data that the party's attorney provided and that the expert considered"; and (3) communications that "identify assumptions that the attorney provided and that the expert relied on."

It’s clear that there is no protection for communications in which the attorney identifies facts or data the expert later relies on in forming his or her opinion. However, the rules do shield conversations about the potential relevance of those facts/data. Also, there is no protection for communications in which the attorney provides certain data or assumptions for use in the actual valuation to the extent the expert actually relied on them in preparing his or her opinion. Communications in which the attorney and expert discuss general hypotheticals using the assumptions are protected. The rules don’t protect communication between the testifying expert and someone other than counsel—e.g., communications with party employees or consultants.

Gray areas: Questions remain. For example, how much work product can the expert put in the draft? What happens when the attorney conveys facts, data, or assumptions that the expert already knows? Is this protected communication? What about an expert’s notes of communication with the attorney? Under the rules, the communication itself is protected if it doesn’t fall within one of the three exceptions, but a court may find the notes are discoverable.

What to do: Given the lingering uncertainties, experts want to be careful in their collaboration with attorneys.

• Limit the number of draft reports. Fewer means less exposure.
• Identify a document as a draft by stamping it “draft,” but don’t call everything a draft.
• Limit communication with the attorney.
• Assume all your work notes and papers will be discoverable, even if they summarize discussion with counsel.
• Limit the need for counsel to provide facts, data, and assumptions.
• As for written communication, encourage counsel to separate those items that simply restate facts from those in which counsel is analyzing the facts or discussing their significance.

Extra: A paper from the ABA’s litigation section provides a useful reminder of how attorneys may exploit the rules to achieve discovery. Click here for the paper.