Rule 26 Amendments, History, and Practical Application Part I
Rule 26 of the Federal Rules of Civil Procedure was supposed to expedite discovery and facilitate a faster trial process lessening the burden on courts in the hope claims would settle. This article covers the changes in Rule 26 over the years, focusing on notable amendments, its current iteration, and how it affects expert witnesses. Further, this article features the practical application of Rule 26 for expert witnesses detailing the best practices on how to write and properly format an expert report.
I. The History and Scope of Rule 26
Expert Witness Testimony is essential to any trial, especially when dealing with insurance and its technical terms. Over the years, the Supreme Court has amended Rule 26 of the Federal Rules of Civil Procedure (“Rules”). The Court enacted the Rule’s current form in 1993 and amended it in 2010. Rule 26 covers discovery disclosures, including who needs to write a report, what is protected attorney-client privilege, and what is undiscoverable by opposing counsel.
A Brief History of Rule 26
During the early years of the United States, courts had very little procedural uniformity. In the early nineteenth and twentieth centuries, the lack of procedure came to a head as British forms of action dominated state procedure, and several jurisdictions maintained individual equity and admiralty processes. The first step in significant reform within the procedural process occurred with the Field Code of Civil Procedure of New York. This reform spurred Congress to pass the Conformity Act in 1872, which required federal courts to match their procedures to that of the state they resided in, a precursor of today’s Erie Doctrine. However, equity and admiralty cases were not within the scope of the Conformity Act defeating its purpose. Accordingly, Congress enacted the Rules Enabling Act in 1934 delegating to the Supreme Court “the power to prescribe general rules of practice and procedure and rules of evidence for cases” in federal courts. The Court then formed the Advisory Committee on the Federal Rules of Civil Procedure (“Committee”), which endures today. The Supreme Court charged the Committee with the duty to prepare a “unified system of general rules for cases in equity and actions at law” for federal courts “to secure one form of civil action and procedure for both classes of cases.”
After enacting the Federal Rules of Civil Procedure in 1937, the first amendments happened in 1970. These amendments substantially and fundamentally changed the rules of discovery by rearranging and transferring the order of Rules 26 through 37, and “establish[ed] Rule 26 as a Rule governing discovery in general.” These amendments expanded discovery but ensured that it was limited to “interrogatories demanding identification of the subject on which the expert would testify, the substance of the facts and opinions to be stated, and a summary of the grounds for each opinion.” The practices related to expert witnesses developed differently throughout the us. In some states, it was common to depose trial experts, while in other’s depositions were abnormal. The 1970 amendments added uniformity, but the rules of discovery and Rule 26, in particular, did not take on their current significance until the 1993 amendments.
The current form and importance of Rule 26 emerged in 1993 when a series of amendments to the Rules occurred because of Daubert. The Court ruled on Daubert v. Merrell Dow Pharmaceuticals Inc. on June 28, 1993, almost three months after arguments. Because of the decision in Daubert, the rules of discovery were amended on December 1, 1993.
Daubert significantly changed evidentiary standards affecting all rules governing the admissibility of expert testimony and related discovery practices at the federal level. The plaintiffs claimed they were born with birth defects because their mothers took Bendectin, an anti-nausea medicine. There were no studies that found a direct link between Bendectin and deformity in humans. So, the plaintiffs used testimony from expert witnesses centered on live animal and test-tube studies, along with a reanalysis of human statistical studies that showed the necessary causal link.
Dow argued that using Frye v. United States as the current standard, the plaintiffs could not support their burden of proving causation because the scientific methods were not “generally accepted.” The Supreme Court held that “the Frye test was superseded by the adoption of the Federal Rules of Evidence” and specifically by Rule 702, which governed Testimony by an Expert Witness. The Supreme Court decided federal trial judges should be the “gatekeepers” of scientific evidence and set forth a two-part test: expert testimony on scientific or technical evidence must be both relevant to the facts of the case and reliable. They enumerated four guidelines to assist judges in accomplishing their “gatekeeping” role find: (1) whether the theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether there is a known or potential rate of error for a particular technique, and (4) whether there is a widespread acceptance within the relevant scientific community.
The Supreme Court further explained that if there are any objections to the evidence or expert testimony, “the trial judge must determine at the outset, pursuant to Rule [of Evidence] 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of the fact to understand or determine a fact in issue.” These objections are raised in a motion in limine, colloquially called Daubert motions. The motions and subsequent hearings highlight the importance of Rule 26 regarding expert reports.
Based on the ruling in Daubert, the Committee amended the Rules regarding expert witnesses to match the Federal Rules of Evidence. The amendments eliminated the use of surprise expert opinions and aimed to reduce litigation costs. The amendments also established severe consequences for violating Rule 26 by allowing courts to enact sanctions. Most notably if a party fails to disclose information, then they are not permitted to use that evidence at trial unless the failure is deemed harmless.
The Committee intended Rule 26’s amendments to “accelerate the exchange of basic information about the case and to eliminate the paperwork involved in requesting such information.” Their reporting requirement attempted to expedite depositions, and in some cases “avoid any need for deposition.” The amendments helped focus discovery and assist with preparation for settlement or trial. The Committee added paragraph (b), which requires a report from anyone identified as an expert witness. Rule 26’s plain meaning states that a report is not required unless a person is retained or employed explicitly as an expert or is an employee that regularly gives expert testimony. However, courts have offered differing opinions on the plain meaning of Rule 26.
The amendment in 2010 broadened the purview and eliminated the lower courts’ differing opinions regarding Rule 26. Before the 2010 amendment, the lower courts were split. The Tenth Circuit and District Courts in the First, Seventh, and Ninth Circuits held that the plain meaning is what mattered, and employees of a party or a treating physician are not required to write a report, even though they are experts. While the Third, Sixth, and Eleventh Circuits, along with District Courts in the Second, Fourth, Seventh, and Ninth Circuits, held a much broader view of the rule holding that Rule 26 required expert employees and treating physicians who developed opinions in preparation for trial had to write reports.
The Committee followed the majority of courts by making any party retained or expressly employed to provide expert testimony to prepare a written report, including physicians who develop opinions in anticipation of trial, or at the attorney’s request. The 2010 Amendment increased the number of people who need to write reports but made litigation and the courts “gatekeeping” duties appreciably more manageable.
Washington DC Federal Courthouse Photo Credit
 Act of June 1, 1872, ch. 255, §§ 5 & 6, 17 Stat. 196, 197.
 28 U.S. Code § 2072
 Advisory Comm. on Rules for Civil Procedure, Report, at iii (1937), available at http://www.uscourts.gov/rules/Reports/CV04-1937.pdf. This section discusses the current version of Rule 26 as enacted in 1993 and amended in 2010.
 Fed. R. Civ. P. 26 advisory committee’s explanatory statement (1970).
 Fed. R. Civ. P. 26 advisory committee’s note (1970) (“A limited rearrangement of the discovery rules is made, whereby certain Rule provisions are transferred, as follows: Existing Rule 26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c) is transferred to Rule 30(c). Existing Rules 26(d), (e), and (f) are transferred to Rule 32. Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and 32. In addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this rearrangement is to establish Rule 26 as a Rule governing discovery in general”).
 Civil Rules Advisory Comm., Meeting Minutes 15 (Sept. 7-8, 2006), available at http://www.uscourts.gov/rules/Minutes/CVO9-2006-min.pdf.
 509 U.S. 579 (1993).
 Paul F. Eckstein & Samuel A. Thurman, Getting Scientific Evidence Admitted: The Daubert Hearing, 24 Litig. 21 (1998); Linda Greenhouse, Trial Judges Are Backed on Rulings on Scientists, N.Y. Times, Dec. 16, 1997, at A25.
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 582 (1993).
 Id. at 580.
 Fed. R. Civ. Pro. 37.
 Fed. R. Civ. P. 26 advisory committee’s note (1993) https://www.law.cornell.edu/rules/frcp/rule_26.
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)