How Many Experts Does It Take To Unscrew A Lightbulb?

By David Shaiken

I don’t know about lightbulbs, but I do know that Rule 26 of the Federal Rules of Civil Procedure is likely to be amended effective December 1, 2010, so that an expert witness’s draft reports, and communications with the lawyer who hired the expert, will be protected from disclosure. The following lawyer-expert communications will remain subject to discovery: (a) communications about the expert’s compensation, (b) information provided by the lawyer and considered by the expert, and (c) assumptions the lawyer gave to, and were relied upon by, the expert. Clients will no longer have to pay for both a consulting expert and a testifying expert in most cases. The amendment should put an end to the bruising and expensive discovery fights over whether communications between a lawyer and consulting expert-turned witness should be shielded by the attorney work-product doctrine. In short, this is a victory for clients, and maybe, just maybe, clients will only have to pay for one expert per light bulb. The U.S. Judicial Conference approved the proposed amendments in September 2009. It is expected that the Supreme Court will approve the amendments and transmit them to Congress for a December 1, 2010 effective date.