Brave New World of FRCP Rule 26

It has been about six months since Federal Rules of Civil Procedure No. 26 was revised to protect communications between an attorney and any witness required to file a report.  The exceptions to this protection are :

1. Compensation of the expert.
2. Facts and assumptions that the engaging attorney provided to expert which were considered in rendering his/her opinions.

Many states have adopted provisions similar to revised Rule 26.  However, as an expert, you should discuss with the engaging attorney beforehand whether these provisions will apply to the case at hand. 

Before rushing into the brave new world of Rule 26, consider the following:

1. There will probably be increased scrutiny at deposition or expanded disclosure requests by the opposition to ensure that the authorship of the report is solely the experts.
2. Take care to segregate protected communications from discoverable documents.  This should be vetted by the engaging attorney to ensure that there are no omissions.
3. The engaging attorney should review the expert's produced work file to make sure nothing in it could damage the expert's credibility or endanger the basis of his/her opinions.

In other words, be careful out there.