Most lawyers are already following proposed changes to Rule 26 of the Federal rules of Civil Procedure that would apply the work-product protections of Rule 26(3)(A) and (B) to drafts of expert reports and expert-attorney communications. Exceptions would permit discovery of communications regarding expert compensation and the facts, data, and assumptions on which the expert relied in forming his or her opinions.
The most recent status update offers encouraging news: Encouraged by overwhelming support from trial lawyers and bar associations, the U.S. Judicial Conference approved and submitted the proposed rule changes (along with other amendments to civil, appellate, and bankruptcy rules) to the Supreme Court. "Lawyers and experts take elaborate steps to avoid creating any discoverable record and at the same time take elaborate steps to attempt to discover the other side’s drafts and communications," the Judicial Conference explained in its report to the Supreme Court. "The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts." The Supreme Court will most likely ratify the amendments by May 1st and submit them to Congress. Unless Congress rejects the rules, they will take effect on Dec. 1, 2010.