Rule 26 Modifications To Limit Inquiries To Experts
To make expert depositions more efficient, the U.S. Judicial Conference Advisory Committee on Civil Rules has proposed that lawyers no longer be permitted to interrogate opposing experts about their communications with the lawyers who retained them. Under the proposed rule changes, draft reports will be subject to work product exemption and will not be discoverable. As Jeffrey Greenbaum, a partner at Sills Cummis & Gross, P.C. in Newark and an officer of the ABA Section of Litigation, which recommended that the rule be changed, advised Law360, "There is interplay between attorneys and experts in terms of strategy that takes place." Therefore, prohibiting discovery about "who said what to whom" will allow depositions to focus on the expert's analysis of the case. At the end of the day, jurors care about issues of bias, but could not care less about who said what to whom. Some trial lawyers are concerned that the new rule will give license to "hired guns" who do the bidding of the lawyer who retained them. However, the view shared by most is that interrogating an expert about his conversations with counsel and prior report drafts is a big waste of time. Nevertheless, some lawyers value the opportunity to fully inquire of an expert witness his or her connection to counsel and are concerned the new rule will chip away at that inquiry.
For an interesting article regarding Rule 26: Major Changes for Attorneys and Experts by Robert Ambrogi, please visit: http://www.ims-expertservices.com/newsletters/feb/rule-26-major-changes-for-attorneys-and-experts-020810.asp