TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: August 8, 2011
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
Rule 26 came before the Committee at the September 2010 and April 2011 meetings. At these meetings, the Committee considered at length whether amendment of the rule to clarify protections for communications between attorneys and expert witnesses would be appropriate.
In April, the Committee rejected proposed amendments to Rule 26 from member Larry Boschee that were intended to allow a party through interrogatories to request all the information that a party in federal court could obtain in a required expert disclosure.
The Committee also rejected amendments to Rule 26 based on the December 2010 amendments to Fed.R.Civ.P. 26, which provide specific details on the types of attorney/expert communications that are subject to discovery.
Based on the discussion at the April meeting, Mr. Boschee has developed new proposed amendments to Rule 26 that would allow parties to obtain, through interrogatories, basic information on all experts expected to testify at trial and additional information regarding experts specifically retained to testify at trial. Mr. Boschee's proposal, and a draft of Rule 26 containing Mr. Boschee's proposed amendments, are attached.
In April, the Committee also discussed Judge Donovan Foughty's recent memorandum and order on discovery of information provided by an attorney to an expert witness. Judge Foughty analyzed the case law on expert disclosure under Fed.R.Civ.P. 26 and North Dakota case law on discovery of attorney work product. He concluded that the case law forbade disclosure of "attorney work product, including mental impressions, legal theories and attorney opinion." He concluded that the case law, however, allowed discovery of expert billings and invoices "along with a list of discovery documents and materials that Defendant's attorney told his expert to specifically look at after employing the expert's services." A copy of Judge Foughty's legal analysis is attached.