The Rule 26 Amendments: One Year Later

John Keith

Louis Kempinsky

by Louis E. Kempinsky 
and John C. Keith

Originally published by the American Bar Association, April 30, 2012

On December  1, 2010, several amendments to Federal Rule of Civil Procedure 26 took effect.  The primary thrust of the 2010 amendments was to address the “undesirable  effects” of the 1993 amendments to Rule 26, which had provided for “routine  discovery into attorney-expert communications and draft reports.” 2010 amends.,  advisory committee’s notes. The four main changes were

• generally  narrowing the subject-matter of a testifying expert’s disclosure, Fed. R. Civ.  P. 26(a)(2)(B);
• extending  work-product protection to draft expert reports, Fed. R. Civ. P. 26(b)(4)(B);
• providing  new work-product protection to attorney-expert communications, Fed. R. Civ. P.  26(b)(4)(C); and
• clarifying  which testifying experts are required to provide written reports, Fed. R. Civ.  P. 26(a)(2)(B) and (C).

The 2010  amendments have been in effect for just over a year, and they have not been  applied in all cases. The 2010 amendments apply to cases pending as of December  1, 2010, only “when just and practicable.” Order Amending Federal Rules of  Civil Procedure, Apr. 28, 2010. As is not surprising in light of the standard,  cases examining whether it would be “just and practicable” to apply the new  version of the rule are highly fact-driven and have come down on both sides. Case  law interpreting the amendments is still in an early stage of development.  Nonetheless, a number of potentially significant issues have already emerged.

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