On December 1, 2010, revisions to Federal Rule of Civil Procedure 26 came into effect that will change the way litigants deal with experts. In trademark litigation, survey experts have become invaluable to building a successful case. Working with an expert who will testify at trial presents practical challenges, however, in protecting the interactions between the expert and litigation counsel from discovery. Frequently, attempted discovery of these interactions leads to significant, and costly, disputes. The recent revisions to the Federal Rules attempt to limit discovery of these interactions.
Revisions to Rule 26(a)(2)(B)(ii) and 26(b)(4): Work-product Protection for Draft Expert Reports and Communications Between Attorney and Expert
Rule 26(a)(2)(B)(ii) has been revised slightly, but in an important practical way: the report prepared by an expert must now include the “facts or data or other information considered by the witness.”
The addition of subsections (B) and (C) to Rule 26(b)(4) grants greater protection from discovery to draft reports and communications with experts in litigation. (more…)