Ambiguity Related to Disclosure in Litigation
Its history is long and checkered, its changes controversial and confusing, and its application still unclear. Rule 26 of the Federal Rules of Civil Procedure has long governed the disclosure requirements of expert reports, but its continually changing language has been interpreted and reinterpreted in a variety of fashions by attorneys, experts and judges. A clear understanding of the rule and its definition, together with its components relating to confidential communications, is critical to determining what is protected, what is admissible and what must be disclosed.
In its prior incarnation, Rule 26(a)(2), the section governing expert witness reports, required a testifying expert’s report to contain all the data “or other information” relied on in reaching his opinion. This language, in and of itself, was interpreted widely, but the general consensus was that draft reports qualified as “other information.” However, in an effort to eliminate the clichéd “fishing expeditions,” together with related procedural inefficiencies, a December 2010 amendment to the rule modified “data or other information” to “data or facts.” In making this modification, (b)(4)(C) of the Rule was also amended to explicitly provide work-product protection to draft expert reports, as well as communications between attorneys and their experts.
As with other provisions, the amendments did not come without exceptions, and the work-product protection included three exclusions to attorney-expert communications: (a) communications relating to the expert’s compensation; (b) the identification of facts or data provided by the attorney to the expert and which the expert considered; and (c) assumptions which the attorney provided and which the expert relied upon.
Thus, with the promulgation of the amendments and related exceptions, there arose a requirement that testifying experts disclose those material considerations which contained facts relied upon in reaching an opinion. Although the disclosure of such facts is clearly mandated by the Rule, communications between attorney and expert relating to the relevancy of such facts or data appear to fall within the confidential communications provisions, as do discussions relating to “hypothetical scenarios.”
The intent of the amended Rule is obvious: that all relevant facts and data relied upon be disclosed, but not their strategic value or relevance to the ensuing litigation. Thus, the overlap between these two competing intents created a gray area with some ambiguous and vague underlying issues. Where a fact exists that could have been discovered by the expert other than through communications with the attorney, does the attorney have to first restate the fact before discussing its relevance in order to avoid disclosure of the relevant conversation? Were it to be discoverable, the interest of true disclosure is not being fully served, as a restated fact is one which an expert could have otherwise discovered and is, therefore, discoverable.
Therein lies the issue of defining what the term “identify,” as specified by the Rule, specifically means and requires. Unless the attorney is identifying a fact for the first time, the entire communication with the expert in this scenario should be protected. However, no legislation or case law exists to clarify this ambiguity or to adopt this interpretation. Additionally, whether work-product protections extend up to trial is a debated issue, and a provision to the Rule which was not adopted was specifically formulated to answer this question. As an example, is a draft report with facts or data which were not ultimately included in the final report discoverable? Are the protections afforded to the expert witness excised upon his taking the stand? Should the attorney and expert keep a record of protected communications and draft reports in order to combat these possibilities?
The amendments to the Federal Rules of Civil Procedure also sparked revisions elsewhere, with the Tax Court following the trend and excluding draft expert reports from discovery, “regardless of the form in which the draft is recorded.” Rule 70 of the Tax Court’s Rules of Practice and Procedure was, similarly, revised in accordance with the Federal Rules, to protect communications between experts and attorneys, although it also included the three exceptions enumerated by the Federal Rules. However, as with the lack of clarity in interpretation of the Federal Rules, absent a court decision, the Tax Court has not yet issued any statements interpreting the amendments to its rules.
Until a bright-line rule is established, and until further clarification is elicited, the disclosure of draft reports and communications between attorneys and experts must be carefully considered and the Rules complied with as effectively as possible.
Elizabeth Tylawsky, MSAT, Esq.
Meyers, Harrison & Pia, LLC