Changing the Rules for Testifying Experts

Expert Testimony

In Federal Court, expert testimony, including written expert reports, is governed by FRCP 26 (a)(2), which reads as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ' including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

The courts have liberally interpreted the requirements of this rule and consequently the discovery permitted thereunder has been broad and often onerous. As such, everything written, said or considered by the expert, including every note jotted down, every analysis performed, every communication specific to the matter and any draft of the expert report is potentially discoverable by the opposing side. In response, lawyers, in conjunction with experts, have developed methodologies that are effective at enabling them to understand and obtain advice on technical issues and yet avoid the production of documents that bear little on the fundamental premise of the expert's final opinion; however, these methodologies can be cumbersome and expensive.