Effective December 1, 2010, FRCP 26(b)(4)(B) protects draft expert reports from disclosure. This recent amendment to the Federal rules provides the trial preparation material protection of FRCP 26(b)(3)(A) and (B) to the production of draft expert reports. The new rule offers protection to “any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.” In short, a party need not produce draft expert report to the opposition.
Note that the trial preparation material protections still leave a crack in the new protections of 26(b)(4)(B) for (1) things “otherwise discoverable under Rule 26(b)(1) and (2) things for which the party shows it has a “substantial need” and cannot obtain without “undue hardship.” FRCP 26(b)(3)(A)(i) and (ii).
These new protections, however, apply only to experts “retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” FRCP 26(a)(2)(B). Thus, non-retained experts such as a treating physician do not enjoy these same protections. A later post will address the reporting duties related to a non-retained expert.
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