Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them....
...The proposed rule retains the three categories of attorney-expert communications that are excluded from the work-product protection under the existing rule:
- Communications pertaining to the expert's compensation.
- Facts or data that the attorney provided and the expert considered in forming opinions.
- Assumptions that the attorney provided and that the expert relied on.
In another change, the proposed rule would alter the procedure for witnesses who will provide expert testimony but who were not specifically retained to provide expert testimony. Treating physicians and government accident investigators are examples of this category of expert.
