On December 1, 2010, Federal Rule of Civil Procedure 26 (FRCP 26) was amended to significantly limit expert discovery. Though these amendments protect many attorney-expert communications and draft expert reports from disclosure, recent case law has revealed the limits of these protections.

The 2010 amendments to FRCP 26:

For more information on the 2010 amendments and their impact on the use of experts, see Article, Expert Discovery: An Update on the Rule 26 Amendments.

Although the 2010 amendments provided guidance on what expert materials and communications are protected from disclosure, courts have clarified FRCP 26's new language by interpreting terms such as "draft report" and "facts or data."

Courts have generally construed the term "draft report" narrowly, excluding the following from its meaning:

(See Powerweb Energy, Inc. v. Hubbell Lighting, Inc. No. 3:12-cv-220, , at *4 (D. Conn. Feb. 20, 2014) (rejecting plaintiff's argument that an expert's emails constituted draft reports); In re Application of the Republic of Ecuador, 280 F.R.D. 506, 513 (N.D. Cal. 2012) (finding that notes, task lists, outlines, memoranda, presentations and letters drafted by a testifying expert and his assistants did not constitute draft reports); Dongguk Univ. v. Yale Univ., No. 3:08-cv-00441, , at *1 (D. Conn. May 19, 2011) (concluding that notes are not protected under FRCP 26(b)(4)(B) or (C) because they are neither drafts of an expert report nor communications between the party's attorney and the expert witness); but see Etherton v. Owners Ins. Co., No. 10-cv-00892, , at *2 (D. Colo. Feb. 18, 2011) (holding that the defendant's "working notes" were protected from disclosure because an expert's drafts are protected "regardless of the form in which the draft is recorded.").)

In addition, courts have required experts to disclose "facts or data" provided by counsel where the information:

(See Powerweb Energy, Inc., , at *4 (requiring production of facts and data the expert considered that were prepared by another expert retained by the plaintiff); United States v. Veolia Env't N. Am. Operations, Inc. No. 13-cv-03, , at *6-7 (D. Del. Oct. 25, 2013); Fialkowski v. Perry, No. 11-5139, , at *4-5 (E.D. Pa. June 29, 2012) (requiring production of facts and data the expert considered that were prepared by the plaintiff rather than the plaintiff's attorney); D.G. ex rel. v. Henry, No. 08-74, (N.D. Okla. Apr. 8, 2011) (ordering production of the expert's highlights and notations on the case file).)

As recent case law suggests, despite the clarifications of the 2010 amendments to FRCP 26, counsel should continue to be cautious when communicating with experts. To ensure that information and communications are protected from disclosure, counsel should limit:

For more detailed information about FRCP 26 amendments, see Article, Expert Q&A on the Rule 26 Amendments: Developing Case Law.