TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: Jan. 31, 2011
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
Rule 26 came before the Committee at the September 2010 meeting. The Committee considered whether amendment of the rule to clarify protections for communications between attorneys and expert witnesses would be appropriate.
Committee member Larry Boschee proposed that Rule 26(B)(4) be amended to clarify that a party through interrogatories is entitled to request all the information that a party in federal court would obtain in a required expert disclosure. The attached Rule 26 proposal contains amendments adding the federal items.
One point to consider regarding these proposed amendments is that the federal rule's disclosure laundry list applies "if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Many frequently called expert witnesses, such as treating physicians or highway patrol accident analysts, do not fit this definition and it might be difficult for them to provide all the information that can be sought from a retained expert.
The Chair brought the December 2010 amendments to Fed.R.Civ.P. 26 to the Committee's attention. These amendments have now been approved and provide specific details on which attorney/expert communications are subject to discovery.
The report of the judicial conference explained why the amendments to Fed.R.Civ.P. 26 were considered necessary:
The proposed amendments to Rule 26 recognize that discovery into the bases of an
expert's opinion is critical. The amendments make clear that while discovery into draft reports and many communications between an expert and retaining lawyer is subject to work-product protection, discovery is not limited for the areas important to learning the strengths and weaknesses of an expert's opinion. The amended rule specifically provides that communications between lawyer and expert about the following are open to discovery: (1) compensation for the expert's study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinions; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.
Amendments based on the federal changes are included in the attached Rule 26 proposal. A copy of Fed.R.Civ.P. 26 and explanatory material on the 2010 amendments is also attached.