Effective December 1, 2010, Federal Rules of Civil Procedure 26(a)(2) and (b)(4) were substantially revised. Whereas Rule 26 once allowed broad discovery of all communications, including draft reports, between counsel and experts who were retained to testify at trial, the 2010 amendments limit discovery of these communications.
Under the amended Rule 26, draft reports and most communications with testifying experts and their employees are not discoverable. Communications will be discoverable only to the extent that they relate to the expert’s compensation, identify facts or data that the attorney provided and that the expert considered in forming the opinions to be expressed, and identify assumptions that the attorney provided and that the expert relied upon in forming the opinions to be expressed.
One should still be circumspect in their communications with testifying experts. The Committee Note relative to the amendment states that discovery of draft expert reports and communications outside the three exceptions will be “rare” but may still be permitted – in limited circumstances and by court order.