By Laura Gorman, Barnes & Thornburg LLP
Pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, parties’ experts must prepare written reports containing, among other detailed information, a complete statement of all opinions the expert will express and the basis and reasons for them. The 2010 amendments to the Rules significantly changed the limits of expert discovery governed by Rule 26 and now generally protect from disclosure communications between a lawyer and a retained expert, including draft or preliminary reports, as attorney-work product.
As a result of the revisions, some lawyers have taken the opportunity to mold an expert’s opinions by drafting the expert’s report for them, given that such drafts are no longer discoverable, with some exceptions. While the Rule does not speak to the involvement a lawyer may have in drafting an expert’s report, case law throughout the recent years suggests that a lawyer who plays a significant role in shaping an expert’s report opens that expert and the report up to impeachment. Rather, the more appropriate approach, as noted in such cases to avoid the appearance that a lawyer heavily controlled an expert report, is to supply the expert with sufficient materials relating to the case, a comprehensive overview of the facts and ample opportunities to meet with counsel to discuss the expert’s findings before a report is prepared.
Click here to read a recent blog post on the issue.
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