Expert Discovery After Rule 26 Amendments: Lessons from Recent Cases

Navigating the Practical Impact of the “Facts or Data” Scope Change, “Drafts of Expert Reports” Protections, and Other Disclosure Uncertainties

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, November 26, 2013

Recorded event now available

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This CLE course will examine the courts' recent application of the Rule 26 Amendments on expert witness discovery, including lingering uncertainties. The panel will review the practical impact of the “facts or data” scope change, draft expert report protections, and other key changes to the expert disclosure rules.


The 2010 Amendments to Federal Rules of Civil Procedure Rule 26 dramatically altered the law of expert witness discovery by expanding attorney work-product protections for communications between attorneys and expert witnesses.

The new rules extend work-product protection to draft reports by testifying expert witnesses and to certain communications between the attorney and expert witness. The rules also address disclosures required for testifying experts who are not required to provide a Rule 26(a)(2)(B) report.

A number of courts have issued decisions outlining which expert communications are protected and which are not since the amendments became effective. However, there is no clear consensus among the courts, resulting in a number of lingering uncertainties.

Listen as our panel of experienced litigators analyzes how the courts have applied the Rule 26 Amendments regarding expert witness discovery and explains best practices for leveraging the new rules to protect communications between attorneys and expert witnesses.



  1. Key features of Rule 26 Amendments
    1. Experts providing reports and experts not providing reports
    2. Expert reports limited to "facts or data"
    3. Draft reports, communications and exceptions
  2. Best practices for litigators—lessons from recent cases


The panel will review these and other key questions:

  • How have the Rule 26 Amendments altered expert witness discovery practice?
  • Which communications are protected and which are unprotected after the 2010 amendments?
  • How do the discovery rules distinguish between testifying experts and consulting experts?
  • What are the best practices for protecting attorney-client privilege when working with expert witnesses?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Jonathan Evan Goldberg
Jonathan Evan Goldberg


He focuses on all aspects of complex commercial litigation, employment law and litigation, and ERISA litigation. He is...  |  Read More

Lauren DeBruicker
Lauren DeBruicker

Duane Morris

She practices in the areas of commercial and insurance coverage litigation, with an emphasis on matters involving...  |  Read More

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