ABA Proposes Limitations on Expert Disclosures

September 2006

The American Bar Association voted for a rule change regarding discovery of expert witness report drafts and other communications. The change would affect Federal Rules of Civil Procedure (FRCP) Rule 26(a)(2) to provide a privilege for draft reports and communications between attorneys and expert witnesses. The measure will now be forwarded to the U.S. Supreme Court's Committee on Civil Rules. 

The text of the resolution reads as follows: 

RESOLVED, That the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expert's report, as follows:

(i) an expert's draft reports should not be required to be produced to an opposing party;

(ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances;

(iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expert's opinions. 

FURTHER RESOLVED, That the American Bar Association recommends that, until federal, state and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery draft expert reports and communications between attorney and expert relating to an expert's report.

The proposal arises because of differences among courts in applying FRCP Rule 26, with some courts requiring disclosure of all information provided to testifying experts, including attorney-opinion work product and draft reports, with others holding the opposite.  

In the most recent such case, the 6th U.S. Circuit Court of Appeals (Regional Airport Authority of Louisville and Jefferson County vs. LFG, LLC, No. 05-5754, August 17, 2006) ruled in favor of disclosure.  

According to the 6th Circuit,  

"Prior to 1993, there was general agreement that Federal Rule of Civil Procedure 26 excluded categorically the discovery of attorney opinion work product, even when provided to testifying experts. … In 1993, however, Rule 26 was amended to require parties to submit expert reports for all testifying experts. … Since the amendments, two lines of cases have formed regarding protections of work product associated with those experts. The first holds that attorney work product is not discoverable merely because it is shared with a testifying expert. (citations omitted) The second holds that Rule 26 creates a bright-line rule requiring disclosure of all information provided … A majority of courts that have considered the matter, including the only court of appeals to have done so, relies mostly on statements in the Advisory Committee Notes in holding that Rule 26 as amended creates a bright-line rule requiring disclosure of all information provided to testifying experts." 

The 6th Circuit did not have before it any question of draft reports, so the case is not helpful for that portion of the proposed amendment approved by the ABA Delegates. 

The issue of draft reports probably does need additional limitations. Practical or experience-based experts, such as plumbers or mechanics, are not likely to be experienced in preparing formal reports, and appropriately require assistance by legal counsel. Further, incomplete renditions of a report which have not yet been shared with legal counsel also serve to confuse issues instead of shedding light on the truthful end product. In the words of the report that accompanied the now-approved proposal: 

"The draft of a 'report' is an iterative process by which the expert's analysis is refined, often with false starts. What should matter in litigation is not how the expert arrived at his or her final conclusion, but whether the conclusion holds water and can stand scrutiny tested on its merits." 

However, the approved proposals should be amended because they go too far in preventing appropriate inquiries. For example, under the recently-approved proposals, no disclosure would likely occur for: 

1. The expert's engagement letter
   
2. The expert's billings
   
3. Legal counsel's instructions that the expert use or abandon a particular approach
   
4. An expert's request to see specific documents, and legal counsel's refusal to provide such information 

In another action, the ABA delegates voted unanimously to amend the FRCP to allow parties to reassert privilege for inadvertently disclosed material.

Fulcrum Financial Inquiry regularly provides expert testimony on damages analysis, business appraisals, and financial investigations.