Effects of 2010 Amendment of Rule 26 – Part 2

The 2010 amendment of Rule 26 changed the scope of who needs to write a report and who does not by expanding who is an expert. It is the testimony that is expert or lay, not necessarily the witness. The other effect is that the drafts of an expert’s opinion are no longer discoverable, and neither are the communications between the expert and the attorney.

2010 Amendment of Rule 26

Who Needs to Write a Report?

Since the type of witness who needs to write a report has expanded, some witnesses seem as if they are lay witness. However, they may have specialized or technical knowledge that would require them to write a report under this rule, even if their knowledge came from working on the job for many years. They are considered an expert because of their years of experience. It does not matter how they obtained this knowledge only that they acquired it.

Example of 2010 Amendment of Rule 26

A mechanic who did not graduate from high school but spent forty years fixing a particular style of vehicle is expert testimony because his knowledge on the vehicle is technical and specialized. However, an aeronautical engineer may be a lay witness if describing a car accident. Regarding insurance, technical or specialized knowledge of the field is expert testimony. However, merely describing the policy in general terms of what an employee believes is covered is firsthand sensory observation. The employee is only speaking as to what is on the paper in front of them, not the technical aspects of insurance claims and underwriting. Nonetheless, it is safer to have a witness write a report and not need to submit it than to need the report and not have it to submit.

What is Protected?

The Advisory Committee expanded the scope of protected material. Now, attorneys need not hire two expert witnesses anymore, which allows attorneys and experts to send draft reports and communication without being subject to discovery. Before the 2010 Amendment of Rule 26, attorneys hired a consulting expert and a trial expert. Hiring two experts permitted the attorney to share all of their evidence, thoughts, and impressions with the consulting expert without fear of having to disclose such information to opposing counsel. Enabling the attorney to come up with a plan of attack and figuring out the best approach for their client.

Upon hiring the testifying expert, the attorney would give them only the necessary information to get the testimony and opinion the attorney wanted based on the findings from the consulting expert. Retaining two experts increased the expense of litigation, which decreased the number of people who could seek justice to only those who could afford it. Although more people must write reports to testify, the changes in discovery lowers the cost of litigation and facilitates speedy settlements and trial preparations.

2010 Amendment of Rule 26 Does Not Protect Everything

The 2010 amendment of Rule 26 does not protect everything, including the expert’s opinions, the factual foundations for their opinions, the testing method they chose and why alternatives were not chosen, any communications with people other than the attorney, nor the expert’s notes in some cases.

In Republic of Ecuador v. MacKay and Republic of Ecuador v. Kelsh, the plaintiff sought discovery from the two experts, MacKay and Kelsh, who helped Chevron in a dispute between it and Ecuador. The plaintiff’s claimed discovery would show that the experts and Chevron colluded and manipulated the data to obtain results in Chevron’s favor. Chevron produced hundreds of thousands of documents but withheld thousands more claiming privilege. The court rejected Chevron’s argument and stated only draft documents, and certain expert communications with Chevron’s attorneys were protected; otherwise, Chevron needed to produce everything else. On appeal, the Eleventh Circuit agreed with the lower court, citing Rule 26(b)(3)(A), which explicitly lists protection of a “consultant, surety, indemnitor, insurer, or agent,” and not expert.

Regardless, the expert’s notes of the attorney’s opinions should be protected communications, including documents that would disclose the attorney’s opinions unless used as a factual basis for the expert’s opinion. However, if there is a substantial need, and the information cannot be obtained without undue hardship, discovery of otherwise protected material is allowed. Efforts by attorneys and experts to protect notes as “drafts” have been made, and sometimes they’re successful. Attorneys and experts should specifically designate their notes of opinions and draft opinions as “drafts,” barring any room for confusion. Even though there are protections for insurer, indemnitor, etc. a lawyer may face sanctions if they fail to disclose all policies available that may indemnify a client, including monetary sanctions.

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