Sunday, November 28, 2010

Revisions to Fed.R.C.P. 26 Go Into Effect on December 1st

Revisions to Rule 26 of the Federal Rules of Civil Procedure take effect on December 1, 2010, resulting in a significant change in the long-standing federal court procedure regarding the discovery of expert witness reports.

After December 1, Rule 26 will no longer require full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the Rule’s last revision back in 1993.

Under the new Rule, these types of 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 permitted is the full discovery of the expert’s final opinion and of the facts or data used to support the opinions.

It is noted that this same issue is still under review in the state appellate court here in the Commonwealth of Pennsylvania with the recently allowed re-argument en banc of the case of Barrick v. Holy Spirit Hospital.

The first time around, the Pennsylvania Superior Court ruled that attorney-expert communications were discoverable--that decision has been withdrawn as the full Superior Court prepares to address the issue again at a date still to be determined. I will again present the amicus curiae position of the Pennsylvania Defense Institute on this all-important issue. Stay tuned for more updates here on Tort Talk.

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