On December 1, 2010, changes to Federal Civil Rule 26 become effective that will affect the use of expert witnesses in federal courts. This amendment adds new subparagraphs 26(b)(4)(B) and (C):
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
The amendments essentially extend the work-product protection to draft reports by testifying expert witnesses and protect most communications between attorneys and experts.
Prior to the change, Rule 26 had been interpreted by most federal courts to allow discovery of all materials considered by testifying experts, all communications between counsel and testifying experts, and all draft reports of testifying experts. See In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) (“[T]he 1993 amendments to Rule 26 . . . make clear that documents and information disclosed to a testifying expert in connection with his testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report,” including an attorney’s “core work product.”); see also Manufacturing Admin. & Mgmt. Sys. Inc. v. ICT Group, Inc., 212 F.R.D. 110, 113-14 (E.D.N.Y. 2002) (same); see also Krisa v. Equitable Life Assur. Soc., 196 F.R.D. 254, 256 (M.D.Pa. 2000) (holding that documents prepared by expert witnesses, including draft expert reports, are not protected by the work product doctrine); Ladd Furniture, Inc. v. Ernst & Young, Case No. 95-00403, 1998 WL 1093901, at *11 (M.D.N.C. Aug. 27, 1998) (noting other courts have found draft expert reports are discoverable).
As a result, lawyers and experts operating under Federal Rule 26 took steps to avoid creating a trail of discoverable information. Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure, noted that this frequently resulted in lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts. The reason for the use of two experts is that under former Federal Rule 26(b)(4)(B) (now Federal Rule 26(b)(4)(D)) the facts known or opinions held by a consulting expert who was not expected to be called as a witness at trial were only discoverable as provided in Rule 35(b) [Physical and Mental Examinations]; or “on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” The rule change is designed to eliminate this inefficient practice.
How does Illinois treat the disclosure of information with regard to experts? Illinois Rule 213(f)(3) states: “A ‘controlled expert witness’ is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.”
The rule regarding consulting experts, Rule 201(b)(3), provides that the identity, opinions, and work product of a consultant are discoverable only upon a showing of “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.” For purposes of Rule 201(b)(3), a “consultant” is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial.
The consequences of the Illinois expert disclosure rules as contained in Rules 201 and 213 would seem to boil down to an interpretation of the term “bases” as used in Illinois Rule 213(f)(ii). If "bases" means only the information relied upon by the expert in forming his or her opinion, then counsel would arguably not be required to turn over anything considered by an expert but not used by him or her in forming an opinion. There are both reported and unreported cases which are useful on this issue.
In McGrew v. Pearlman, 710 N.E.2d 125, 131 (Ill. App. 1 Dist. 1999) the defendant’s accident reconstruction expert was furnished with a recorded statement of the defendant taken just days after the accident at issue. The defendant did not disclose to the plaintiff that the defendant’s expert reviewed the statement prior to trial. The court found no violation of Illinois Rule 213 because 1) the plaintiff had obtained the recorded statement as a part discovery; 2) the court allowed great leeway in plaintiff's cross-examination of defendant’s expert along with the offer for plaintiff to recall his expert to testify based upon the recorded statement; and 3) it was clear that the report did not form the “bases” of the defendant’s expert’s opinion. Id. Although this case did not address the discoverability of any information reviewed by a testifying expert, the court’s interpretation of “bases” could support an argument that information is not discoverable unless it is relied upon by the expert in forming his or her opinion.
However, the court in Coleman v. Abella, 752 N.E.2d 1150 (Ill. App. 1 Dist. 2001) seemed to reach a different result. In Coleman, the plaintiff’s expert reviewed the deposition testimony of other lay and expert witnesses in the case after her deposition took place but prior to trial. Id. at 1155. The defendant moved to strike the testimony of the expert because the plaintiff failed to supplement the expert's deposition with the information that the expert had reviewed these additional depositions. This argument was based on Rule 213's requirement that a party supplement new or different “bases” of any opinion to be offered by an expert. The court agreed with the defendant, stating that even when the “bases” for the expert’s opinion are not broadened by the supplementary material and the opinion itself remains unchanged from that expressed at the deposition, an obligation remains on counsel to update answers to Rule 213 interrogatories so the new material supplied to the expert is disclosed to the opposing side. Id. This case would arguably support the contention that any information conveyed to an expert is discoverable, regardless of whether the information forms the "bases" for the expert's opinion.
At least one Illinois Circuit Court has found that the application of Illinois Rule 213 mirrors exactly the consequences of pre-amendment Rule 26. In Andrade v. General Motors Corp., No. 98 L 585, 2000 WL 35486903 at *1 (Ill. Circuit Court February 28, 2000), the plaintiff moved to compel the defendant’s Litigation Study, a 3,400 page document began at the request of corporate counsel with a view toward then pending and future litigation. In opposition, the defendant represented that its expert would not rely upon the study for his opinions. Id. at *3. The court held: “While there is no Illinois authority on point, this Court holds that the materials, having been considered by the expert, are discoverable and should be provided despite the privilege claims.” Id. at *3 (citing Karn v. Rand, et al., 168 F.R.D. 633 (N.D. Ind. 1996)).
In sum, under the current expert disclosure rules in Illinois, out of an abundance of caution attorneys may be inclined to follow a procedure which emulates Judge Rosenthal’s observed practice. That is, attorneys may work with two experts - one testifying and one consulting - to avoid the creation of a discoverable record. As a matter of practice, until Illinois changes its expert discovery rules counsel and client should proceed with the assumption that a court will compel production of all information received by a testifying expert - whether relied upon or not - and all draft expert reports. On the other hand, counsel should seek discovery of all information received by an opposing party’s testifying expert and all draft expert reports.