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Changes to Rule 26 of the Federal Rules of Civil Procedure that would protect draft reports prepared by expert witnesses from full discovery to opposing counsel are set to take effect in December, 2010. The revised rule would no longer require full disclosure of any communications between an expert and trial counsel, which has been the case since Rule 26 was last altered in 1993.

Psychologists, accountants, physicians, and others who are called as expert witnesses to testify in court say the changes to FRCP Rule 26 are needed in order to better protect their work product from disclosure to opposing counsel. Proponents say the changes to the federal rules of evidence for expert witness practice will also reduce the rising costs of contested litigation.

Under the planned revisions to FRCP Rule 26, draft reports and any communications between expert and trial counsel would fall under the same expert witness discovery rules and protections already afforded to other types of communications by the Work-Product Doctrine. As such, they would not be subject to broad disclosure rules.

The revised rule would specifically provide that the Work-Product Doctrine applies to "drafts of any report or disclosure required under Rule 26(a), regardless of the form in which the draft is recorded." The proposed rule would also apply to work product prepared by the expert's employees, since the official note from the federal Committee on Rules of Practice and Procedure accompanying the proposed rule explains that its protection is meant to include communications "between the party's attorney and assistants of the expert witnesses."

However, the expert's opinions and the facts or data used to support those opinions would continue to be subject to full discovery under the revised FRCP Rule 26. The following categories of expert-attorney communications from work-product protections would still be excluded from discovery protections under the proposed changes:

• Data or facts the attorney provided to the attorney which the expert used in forming opinions.
• Assumptions the attorney provided and the expert relied on in forming opinions.
• Communications related to the expert's compensation.

The proposed changes to FRCP Rule 26 have been approved by the U.S. Judicial Conference and sent to the U.S. Supreme Court, which is expected to approve the amendments and submit them to Congress. The revised rule will take effect on Dec. 1, 2010, unless Congress rejects the proposed revisions.

The American Bar Association, the U.S. Department of Justice, Defense Research Institute, American College of Trial Lawyers, Federation of Defense & Corporate Counsel , American Association for Justice, Federal Magistrate Judges' Association, Lawyers for Civil Justice, and International Association of Defense Counsel have formally endorsed the proposed changes to FRCP Rule 26.