Reprinted with permission.
New Federal Rule
on Experts Takes Effect December 1
by Robert Ambrogi
Bullseye: November 2010
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industry's premier full-service expert witness provider.
A major revision to Rule
26 of the Federal Rules of Civil Procedure takes effect Dec. 1, bringing about a significant
change in the long-standing procedure governing expert witness reports.
No longer will
Rule 26 require full discovery of draft expert reports and broad disclosure of any communications
between an expert and trial counsel, as has been the case ever since the rule's revision in
Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the intersection
of law, media and technology. A news media veteran, he is the only person ever to hold the
top editorial positions at the two leading national U.S. legal newspapers, the National
Law Journal and Lawyers Weekly USA. He is also internationally known for his writing
and blogging about the Internet and technology.
Instead, those communications will now come under the protection of the work-product doctrine.
The new rule will prohibit discovery of draft expert reports and limit discovery of attorney-expert
communications. Still allowed will be full discovery of the expert's opinions and of the facts
or data used to support them.
The rule was approved by the U.S. Judicial Conference in
September 2009. The Supreme Court approved the change to the rule in April of 2010 and submitted
it to Congress. By law, if Congress takes no action to reject, modify or defer the proposed
rule, it takes effect on Dec. 1.
John K. Rabiej, attorney advisor on court rules to the
Judicial Conference, confirmed that Congress has taken no action and that the rule will take
effect on Dec. 1.Posted 11/16/2010
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