Written by George C. Swarts, CPA and Kimberly McCall, CPA
FRCP Rule 26(a)(2)(b) amendments took effect on December 1, 2010. Under the new rules, experts and attorneys will be able to communicate about the content of expert reports without having to disclose drafts that were shared before the final report was issued. This will streamline the preparation of expert reports and eliminate the need for dual experts in many cases.
During the years since the 1993 establishment of FRCP 26(a)(2)(b) experts testifying in Federal Court have had to carefully avoid generating and disseminating draft reports for fear of having to disclose them in the ordinary course of discovery. This created the risk of exposing all of the thought processes and analysis that lead up to the final conclusion.
Testifying experts have used various techniques to avoid this problem such as limiting written communications with counsel and continuously overwriting the report so that in the end, no discoverable draft reports exist. Using this method, attorneys get their peek at the report before issuance by reviewing the electronic file on the expert's computer or by web-conference.
Many lawyers made it a practice to hire two experts for the same task, one to consult and assist in the discovery and theory of the case, and then another disclosed expert to finalize and testify in court. This arrangement obviously added greatly to the cost of litigation.
The new rules will streamline the process and should save time and money in the preparation of expert reports. Drafts of reports and other communication related to report preparation will no longer be subject to discovery. However, the expert's compensation, and the facts, date, and assumptions relied upon will still be discoverable.
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