Discovery

More often than not, written discovery responses elicit a variety of objections rather than substantive information responsive to the discovery request. The most common objections are asserted on the grounds of irrelevance, excessive scope and vagueness. Too often, the objecting party mistakenly believes that he or she is excused from providing a substantive response simply because an objection has been asserted.

This mistake, all too common in litigation, can bring dire consequences. A mastery of the discovery rules and the applicable case law can help you outmaneuver stonewalling tactics while protecting yourself and your client from the exorbitant costs of discovery battles, and potential as court-imposed sanctions.

Introduction

Federal Rule of Civil Procedure 26 was amended December 1, 2010. The effect of this federal rule change is significant to drug and device lawyers practicing in federal court as it substantially changes the requirements governing what may be discovered from a party's testifying expert. In general, the amendments provide increased work-product protection for testifying expert draft reports. As drug and device lawyers are aware, before the 2010 amendment went into effect, federal jurisdictions did not uniformly apply the discovery guidelines set forth in Federal Rule of Civil Procedure 26. Numerous jurisdictions applied extremely broad interpretations of Rule 26, which resulted in both parties seeking discovery of any and all communications between counsel and the expert witness, including drafts of expert reports. The effect of the old rule was that parties often entered into early negotiations regarding the scope of permissible discovery for expert reports and communications. Frequently, the parties would enter a stipulation preventing all or part of expert discovery. At the minimum, the parties were forced to vigilantly, and at great cost, guard against the disclosure of potentially discoverable information exchanged with their own expert witnesses. The 2010 amendments to Rule 26 seek to address these concerns and provide uniformity in the federal courts regarding discoverability of expert communications and draft reports. This article examines the changes to Federal Rule of Civil Procedure 26 and provides practical guidance for utilizing the new protections.

Introduction

Federal Rule of Civil Procedure 26 was amended December 1, 2010. The effect of this federal rule change is significant to drug and device lawyers practicing in federal court as it substantially changes the requirements governing what may be discovered from a party's testifying expert. In general, the amendments provide increased work-product protection for testifying expert draft reports. As drug and device lawyers are aware, before the 2010 amendment went into effect, federal jurisdictions did not uniformly apply the discovery guidelines set forth in Federal Rule of Civil Procedure 26. Numerous jurisdictions applied extremely broad interpretations of Rule 26, which resulted in both parties seeking discovery of any and all communications between counsel and the expert witness, including drafts of expert reports. The effect of the old rule was that parties often entered into early negotiations regarding the scope of permissible discovery for expert reports and communications. Frequently, the parties would enter a stipulation preventing all or part of expert discovery. At the minimum, the parties were forced to vigilantly, and at great cost, guard against the disclosure of potentially discoverable information exchanged with their own expert witnesses. The 2010 amendments to Rule 26 seek to address these concerns and provide uniformity in the federal courts regarding discoverability of expert communications and draft reports. This article examines the changes to Federal Rule of Civil Procedure 26 and provides practical guidance for utilizing the new protections.