The rule has changed – Expanded work product protections win out in revised Rule 26
Abstract: Absent congressional intervention, proposed amendments to the Federal Rules of Civil Procedure will likely foster significant changes in expert witness practices. The proposed amendments, with three exceptions, make expert draft reports between an expert and the retaining attorney subject to work product protections. This article discusses these amendments, the impetus for their creation, and their implications for the development and discovery of testifying witnesses’ draft reports. A sidebar talks about the effect of a similar rule upon discovery practices in New Jersey.