Work Product Protection for Experts: Notable Decisions Under the 2010 Amendments to Rule 26

– Bloomberg BNA's Product Safety & Liability Reporter

The 2010 amendments to Rule 26-by excluding an expert's communications with counsel and drafts of the expert's reports from discovery-have created a zone of comfort, allowing greater candor and more effective communication between attorneys and their retained experts. Lurking at the periphery of that zone, however, are questions about the scope and nature of the newly-formulated privilege. When an expert performs roles other than those of the testifying expert, are his activities governed by the new rule? Are there limits to what types of communications between experts and counsel are covered by the privilege? What documents fall under the definition of ''draft report''? The developing case law indicates that courts will address such uncertainties with a focus on practical solutions guided by careful attention to the efficiency concerns that prompted the 2010 rule change.

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