Should Ohio Adopt Federal Rule 26 on Expert Discovery?

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Should Ohio Adopt Federal Rule 26 on Expert Discovery?

The Federal Rules of Civil Procedure for pretrial discovery of experts was amended in December of 2010 to make the communication between an expert and the attorney less discoverable at deposition than before. In Ohio, most trial courts have given a very liberal interpretation to what must be disclosed by an expert at the time of deposition. This rule has made the method and manner of communicating with an expert of critical importance. Drafts of reports and other materials such as summaries or timelines provided by the attorney to an expert are potentially subject to discovery. These documents can substantially undermine the credibility of the attorney, the expert and the case itself. Cover letters that contain summaries of facts are also potentially discoverable; thus making it critical to be extremely careful what you put in writing for fear that it may be the subject of discovery and used to impeach the expert.

The Federal Rules for discovery have multiple areas that differ from the Ohio Rules. Including the recent amendment that provides:

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

If you are an attorney and practice in Ohio, be aware of recent changes in the Federal Civil Rules. You might want to use these changes to support an argument that work product provided to the expert is protected from discovery and cite the recent Fed. C. Rule 26 amendment.

Should we adopt the Federal Rules or some portion of the Federal Rules in connection with pretrial discovery of trial expert opinions?

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By Howard Mishkind|2019-03-18T22:03:33+00:00June 5th, 2011|For Attorneys|Comments Off on Should Ohio Adopt Federal Rule 26 on Expert Discovery?
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