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Case Procedure Changes: Import Changes to the 2010 Federal Rules of Civil Procedure

by Rebekah Smith

Starting December 1, 2010, experts subject to Rule 26 of the Federal Rules of Civil Procedure will see some changes.  Rule 26 has been updated by several important amendments that impact the expert-attorney interaction.

The goal behind the changes is to enhance the expert’s ability to collaborate with counsel and assist in developing and refining theories.  Proponents of the changes felt that much of litigation was spent on discovery issues with experts and was increasing the cost of litigation as clients were being forced to hire a consulting and testifying expert.

The changes can be summarized as follows:

  • Drafts of expert reports – Previously all drafts were considered discoverable regardless of form.  Going forward, generally drafts will no longer be subject discovery.
  • Communications with counsel – Protected with three exceptions.  Communications related to:1. Compensation received,
    2. Data considered that was provided by counsel, and
    3. Assumptions relied upon that were provided by counsel.
  • Information considered by an expert – Previously experts were required to disclose “Data or other information” considered.  The new rule provides that experts are required to disclose “Facts or data considered”.

It is still uncertain if some states will adopt these changes.  It also remains unseen as to how these changes will impact attorneys and expert’s actual case procedures.

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