Milbank LLP Litigation & Arbitration partner Grant Mainland participated in a conversation with Thomson Reuters Practical Law on case law developments concerning expert discovery in federal litigation.
Mr. Mainland summarized the primary changes made to Rule 26 of the Federal Rules of Civil Procedure in 2010, focusing on the amendments that limited the discovery of draft expert reports, protected from discovery certain communications between trial counsel and retained expert witnesses, and required parties intending to call a non-retained expert to disclose the subject matter, facts, and opinions on which the witness is expected to testify.
Mr. Mainland then discussed how courts have construed those amendments over the last decade, including:
- how broadly courts have construed protection of draft expert reports as attorney work product;
- when communications between an attorney and an expert are disclosable as “facts or data”;
- how communications between a testifying expert and a non-attorney are treated under Rule 26;
- what materials hybrid witnesses are required to disclose under Rule 26; and
- what best practices counsel should consider given that case law is still developing.
To access the full PDF of the article, "Rule 26 Amendments: Developing Case Law" please click here.
