New Rules Governing Expert Witnesses in Federal Court
By Eric Swanis, Kara B. Hendricks, and Bethany Rabe

Knowing the rules is a crucial part of any game. If you practice in federal court, the game has now changed as to expert witnesses. On December 1, 2010, amendments to Rule 26 of the Federal Rules of Civil Procedure (“FRCP”) took effect, applying to both future as well as to pending cases as is “just and practicable.” U.S. Sup. Ct. Order (Apr. 28, 2010), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Supreme%20Court%202010/SC_Orders_Letters.pdf. Specifically, the changes refine expert witness disclosure requirements and increase work product protection for draft expert reports and certain attorney/expert communications. After highlighting the key amendments, this article will briefly discuss why the rule was amended and provide practical tips for practitioners.

Increasing protection for mental impressions and other work product
FRCP Rule 26(a)(2)(B)(ii), which formerly provided that an expert report must contain “the data or other information” considered by the expert in forming her opinions, now states that an expert report must include the underlying “facts or data.” This change is intended to narrow the scope of the report by excluding the mental impressions of counsel, but at the same time “require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients.” See Fed. R. Civ. P. 26 advisory committee’s note. As to draft expert reports, the revised FRCP Rule 26(b)(4)(B) provides that “drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded” are protected from disclosure. This protection is intended to cover expert reports, the new Rule 26(a)(2)(C) disclosures for non-retained expert witnesses, and any supplementation required under Rule 26(a)(2)(E). See Fed. R. Civ. P. 26 advisory committee’s note.

Likewise, the amendments provide protection against discovery of certain communications between counsel and retained, testifying experts. FRCP Rule 26(b)(4)(C) now states that “communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications” are protected under the work product privilege. See Fed R. Civ. P. 26 advisory committee’ note. However, there are three exceptions. First, communications relating to an expert’s compensation are not protected. See Fed. R. Civ. P. 26(b)(4)(C). Second, communications which identify “facts or data” provided by counsel to the expert are not protected, but “further communications about the potential relevance of the facts or data are protected.” Fed. R. Civ. P. 26 advisory committee’s note. Third, communications identifying assumptions provided by counsel to the expert are not protected, but “discussions [with counsel] about hypotheticals, or exploring possibilities based on hypothetical facts” are not discoverable. Fed. R. Civ. P. 26 advisory committee’s note. Importantly, while communications between counsel and retained, non-testifying experts remain protected, except under a showing of exceptional circumstances under Rule 26(b)(4)(D), communications with the new category of non-retained witnesses who may provide expert testimony are not protected. See generally Fed. R. Civ. P. 26; see also Fed. R. Civ. P. 26(b)(4)(D).

A new category of expert
The amendments to FRCP Rule 26 clarify the disclosure requirements for non-retained witnesses who may provide expert testimony but who are not required to provide a written report. A party’s treating physician who has not been specially retained as an expert witness is an example of a witness in this new category. Revised FRCP Rule 26(a)(2)(C) provides that disclosures for such witnesses must include “the subject matter on which the witness is expected to present evidence under Federal Rules of Evidence 702, 703, or 705” and a summary of the facts and opinions to which the witness is expected to testify. The disclosure for such non-retained, testifying experts does not need to include facts unrelated to the opinions that the witness will present. See Fed. R. Civ. P. 26, advisory committee’s note. When a person is identified pursuant to this provision, the time limits for disclosure of rebuttal evidence also apply. See Fed. R. Civ. P. 26(a)(2)(D).

Why Rule 26 was changed
FRCP Rule 26 was last amended in 1993 to allow expert depositions and require disclosure of expert reports. As a result, courts authorized discovery of communications between experts and attorneys, including draft expert reports. After receiving numerous complaints, the advisory committee found that attorneys’ ability to communicate with experts was diminished out of fear of discovery, with experts and attorneys being forced to adopt strategies that interfered with their work. See Fed. R. Civ. P. 26, advisory committee’s note. As a result, many attorneys began communicating with experts solely by telephone or in person and instructed experts to not deliver and/or destroy draft reports. See Fed. R. Civ. P. 26, advisory committee’s note. The 1993 changes also increased the cost of litigation as attorneys employed consulting experts to assist in case preparation and then hire a second expert to testify at trial. See Fed. R. Civ. P. 26, advisory committee’s note. The advisory committee further noted that some courts even required expert reports from “witnesses exempted from the report requirement.” Fed. R. Civ. P. 26, advisory committee’s note. The 2010 revisions to Rule 26 seek to remedy these negative effects. Fed. R. Civ. P. 26, advisory committee’s note.

Impact of the 2010 revisions to Rule 26 and tips for practitioners
The new rule should facilitate attorney/expert communications, streamline discovery, and reduce litigation expenses. The American Institute of Certified Public Accountants (“AICPA”) supports these amendments as “likely to enhance the ability of experts to collaborate with counsel to develop and refine theories and opinions.” 2010 Federal Rules of Civil Procedure Changes, http://www.aicpa.org (last visited Nov. 24, 2010).

While drafts of reports and communications between experts and counsel are no longer wholesale discoverable, parties will still be required to produce attorney/expert communications identifying an expert’s compensation, as well as the facts, data, and assumptions provided by counsel. 2010 Federal Rules of Civil Procedure Changes, http://www.aicpa.org (last visited Nov. 24, 2010). Because these exceptions are not specifically defined, their interpretation will be left to the courts on a case-by-case basis. As a result, practitioners should take caution in communicating with retained, testifying experts and particularly with non-retained witnesses who may provide expert testimony but who are not required to provide a written report. The AICPA has warned that “experts should not rely on the protections of these new amendments to open the floodgate to unabated communication with retaining counsel.” 2010 Federal Rules of Civil Procedure Changes, http://www.aicpa.org (last visited Nov. 24, 2010). As always, discretion and good judgment are advisable. Finally, we offer the following tips:

• Read the full text of the new FRCP Rule 26;
• Provide facts and data to retained, testifying experts in communications separate from communications containing work product, such as case theories and hypotheticals;
• When addressing discovery in attorney/expert communications, ensure that the responses are limited to communications relating to the expert’s compensation and to those which identify facts, data, and assumptions provided by counsel to, and relied upon by, the expert;
• For non-retained witnesses who will provide expert testimony under Federal Rules of Evidence Rules 702, 703, and 705, be aware that communications with these witnesses are most likely not protected and timely disclose such witnesses via FRCP Rule 26(a)(2)(C); and
• Timely disclose a rebuttal expert, if necessary, to respond to the testimony that will be provided by a non-retained expert disclosed pursuant to FRCP Rule 26(a)(2)(C).

In sum, although the changes to Rule 26 will require some adjustment, the amendments are intended to streamline discovery and eliminate a number of issues that developed following the 1993 amendments. Knowing the new rules will give you an advantage heading into a new era of expert disclosures. Eric Swanis is a shareholder in Greenberg Traurig’s Las Vegas office who focuses his practice on business and complex litigation matters. He can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or (702) 792-3773. Kara B. Hendricks is an attorney at Greenberg Traurig LLP in Las Vegas and can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or (702) 792-3773. Ms. Hendricks represents clients in diverse commercial litigation matters in state and federal courts.

Bethany Rabe is an associate attorney in the Las Vegas office of Greenberg Traurig LLP. She focuses her practice on entertainment law and commercial litigation. Ms. Rabe can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or (702) 792-3773.

In the past, an attorney could file a complaint on behalf of her client without conducting an investigation to determine whether the client’s allegations were truthful. Indeed, an attorney could even invent a hypothetical set of facts that would give rise to a client’s claim. Some attorneys took advantage of this leniency to coerce settlements from defendants by filing meritless or wholly imagined pleadings, which were followed up with discovery designed to harass the defendant. As long as the plaintiff’s attorney did not willfully make false statements, the attorney generally would not be sanctioned. At that time, under the former version of Nevada Rule of Civil Procedure 11, “a lawyer certified that there was ‘good ground’ to support a pleading . . . . [and] [d]isciplinary action was appropriate only for ‘willful violation.’” Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986). Thus, unless an attorney brought a truly egregious action which the attorney knew was not supported by fact, the court had no authority to punish or deter the conduct.

Recognizing that such claims overburdened limited judicial resources, hindered the timely resolution of meritorious claims, and increased the costs of doing business, the Judicial Conference of the United States recommended changes to Federal Rule of Civil Procedure 11 to make lawyers more accountable for their actions, increase the court’s ability to manage cases, improve the discovery process, and encourage the use of appropriate sanctions. The U.S. Supreme Court accepted the recommendations of the Judicial Conference and promulgated the changes, pursuant to Section 2072 of Title 28, United States Code. These amendments were substantially adopted by the Nevada legislature and replicated in Nevada Rule of Civil Procedure 11, which provides that in signing a complaint, an attorney is attesting to each of the following four affirmative representations:

1. (the pleading, written motion, or other paper) is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
2. the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
3. the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

The new rule was designed to create an affirmative duty of investigation as to both law and fact before a complaint is filed. It created an objective standard of “reasonableness under the circumstances.” Golden Eagle Distrib. Corp. (quoting Advisory Committee Note, 97 F.R.D. 165, 198 (1983)). This was intended to be a standard “more stringent than the original good faith formula” so “that a greater range of circumstances will trigger its violation.” Although these changes, intended to curb frivolous pleadings and nuisance settlements, were a good first step, concern arose that the courts were not enforcing the provisions of Rule 11. Some of the committee discussion in the Assembly is instructive in the context of NRCP 11:

Assembly Committee on Commerce and Labor
June 1, 2003
Chairman Goldwater:
Okay. Mr. Sharp, can you help me comment on a couple of other places, since we don’t have the proponent? Tell me about Section 151, page 76; Section 152, paragraph 2. We are finding that language throughout some of the Boards. It is also in [Section] 154 and also a little bit in Section 42. Are we liberally going to construe Rule 11 and let it apply more often? Matthew Sharp:
The concern has been that the courts are not enforcing the provisions of Rule 11. For the Committee, Rule 11 means that lawyers, with respect to any motion or any complaint, who sign the pleading, are verifying under oath that they have a good faith basis for the plea. If they don’t, sanctions are imposed. The criticism has been that the courts are not enforcing the fee portion enough. This provision is certainly instructing the court to liberally construe those provisions and require fees.

As a result of the issues raised by Chairman Goldwater, the legislature made clear its intent with regard to sanctions for an attorney’s failure to conduct pre-litigation investigation during both the 18th Special Session (2002) and the 72nd Regular Session (2003) of the Nevada legislature. During the 2002 Special Session, the legislature removed the court’s discretion in leveling sanctions by amending NRS 7.085 to read that “If a court finds that an attorney has . . . unreasonably and vexatiously extended a civil action or proceeding before any court in this state, the court shall require the attorney personally to pay the additional costs, expenses, and attorney’s fees reasonably incurred because of such conduct.” The legislature further amended NRS 7.085 and NRS 18.010 to add the following to both statutes:

“The court shall liberally construe the provisions of this paragraph in favor of awarding [sanctions] in all appropriate situations. It is the intent of the Legislature that the court . . . impose sanctions pursuant to Rule 11 of the Nevada Rules of Civil Procedure in all appropriate situations to punish for and deter frivolous or vexatious claims and defenses because such claims and defenses overburden limited judicial resources, hinder the timely resolution of meritorious claims and increase the costs of engaging in business and providing professional services to the public.”

SB 250, 72nd Regular Session (2003) (emphasis added).

As a result of the changes to Nevada Rule of Civil Procedure 11 and NRS 7.085 and 18.010, an attorney practicing today is held to a much higher standard than her predecessor practicing prior to these changes. Today, an attorney must conduct a pre-litigation investigation into the facts which the attorney intends to allege in a complaint. The scope of the investigation will depend on the complexity of the facts and legal theories. Sophisticated commercial matters involving technical analytical methods and negligence matters involving extensive injuries may require counsel to retain an objective consulting expert. This is especially true when the potential fact witnesses are involved directly in the conduct giving rise to the claims or defenses. Additionally, to the extent that claims based on facts initially believed to be reasonable become dubious through subsequent discovery, counsel should review frivolous litigation case law and devise a new course of action. This is imperative where counsel determines false information was submitted to the court. Under such circumstances, prudent counsel should consult with the firm’s managing partner to develop an appropriate strategy for moving forward based on the newly acquired information.

What’s clear is that merely satisfying the old standard of avoiding willfully making a false statement is no longer sufficient. Today, counsel has an affirmative duty under Rule 11 to investigate as to both law and fact before filing a complaint.

Brin Gibson is an attorney in Lionel Sawyer & Collins’ Las Vegas office. He can be reached via phone at (702) 383-8901 or via email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it Ketan Bhirud is an attorney in Lionel Sawyer & Collins’ Las Vegas office. He can be reached via phone at (702)383-8907 or via email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it