Ready for the New FRCP 26? The Expert’s Perspective
First Environment is looking forward to working with its clients on expert witnessing projects that are subject to amended Federal Rule of Civil Procedure 26 rule that expands the attorney work product privilege to expert communications and draft reports prepared by testifying experts. The new rule becomes effective on December 1, 2010 and by all accounts, should make communications between attorneys and our team of experts far less complicated than before. First Environment believes there are a number of benefits that will come from the new rule.
First, cumbersome and often time-consuming teleconferences can now be replaced with more efficient e-mailing and other forms of electronic communications. This will allow for more prompt and exact information to be communicated and documented.
Second, the rule should also reduce the amount of time wasted on clarifying the facts and issues at play in the case.
Third, the new procedure will allow draft reports to be freely written and exchanged for comments.
Fourth, the discovery process of “facts or data” produced and considered by the expert or exchanged between the attorney and our experts should be easier and less burdensome than the previous requirement to disclose all “other information.”
However, even though the rule is designed to streamline the efficiency of attorney-expert communications, First Environment believes that work product will still need to be protected until such time when the courts have fully vetted the rule and its scope. This is especially important in the context of experts assisting clients with toxic tort and environmental litigation cases where mountains of discoverable “facts” and “other information” can make or break an expert’s case.
Lawyers defending a lawsuit involving historic ground water cross-contamination from two different sites that are hydraulically interconnected have called on First Environment to develop, as the testifying expert, historic documentation and technical modeling to distinguish and differentiate the contamination. First Environment created a chemical fingerprint of the contaminants and has compared the fingerprint to a known standard developed from other sites using similar components. First Environment is also using historic regulatory and operational data to help distinguish the chemical data from the two sites.
In New York State, First Environment provided an expert report and testimony with regards to the fate and transport of materials generated by a former manufactured gas plant site. The expert’s opinion was derived from the review and analysis of a significant amount of historical data relating to the contamination and the historical practices of the facility. In support of the expert’s opinion and testimony, First Environment developed two dynamic computer-drive animations that provided a clear accurate basis for the source of the contamination and its fate and transport mechanisms. The models were converted to on-screen animations that were used at trial.
Welcome. Because the field of environmental litigation is constantly changing and redefining itself in terms of the evidence required to prosecute and/or defend a lawsuit, we are providing this newsletter as a service to our clients to update them on the most recent trends that we, as expert witnesses, are seeing in the field. This newsletter reports extensively on the amendments to Federal Rule of Civil Procedure 26, from the expert’s perspective, slated to go into effect on December 1, 2010. We also provide answers to some frequently asked questions about First Environment’s Litigation Support Group and the expertise we bring to complex environmental and toxic tort litigations. Lastly, we are providing a news piece on the types of cases we have been working on and the keys to their successes. I hope you enjoy reading this inaugural newsletter and hope that you find it informative and timely.
B. Tod Delaney, Ph.D, P.E.
First Environment is helping a client at multiple sites across the country assess its potential liability associated with historic aircraft manufacturing operations. One of the key constituents of concern in all of these matters is chlorinated solvent (TCE, PCE, etc.) during World War II. First Environment developed an extensive historical database on the use and availability of solvents during the war to demonstrate the extent to which the government was involved in and/or controlled the operations at each of the sites.
On December 1, 2010, new amendments to Federal Rule of Civil Procedure 26 go into effect that will protect from discovery both communications between an expert witness and the attorney litigating the case, and draft expert reports prepared by testifying experts. These protections are granted under an expansion of the attorney work product privilege and are designed to streamline the attorney’s working relationship with the expert witness.
In 1993, Federal Rule of Civil Procedure (“FRCP”) 26(a)(2)(B) was established requiring parties to produce a written report for all specially retained testifying experts. The report was required to outline an expert’s opinions and the “data or other information considered by the witness in forming them.” The implementation of this rule meant that all information relied on or considered by experts in forming their opinions were not protected by the attorney work product privilege. To the extent that the expert communicated with the attorneys on the matter or reviewed and revised draft versions of his or her expert report, the rule held that these actions were “data and other information considered by the witness” and therefore discoverable. Under the 1993 rule, even data that was merely considered by the expert but not ultimately relied on in his or her opinion was discoverable. Pursuant to the 1993 amendment, expert depositions were authorized by rule and were allowed after the expert’s report was served. With expert report in hand that could be used as a guide, expert depositions became commonplace, longer and an integral part of the discovery process. Prior to the 1993 rule amendment, expert witness depositions and discovery required the consent of the propounding party or a court order.
Although the rule was intended to allow parties to seek communications between lawyers and experts and to seek draft expert reports, parties countered this by restricting communications between lawyers and experts to verbal communications only and by instructing experts not to save draft reports. The rule also had the unintended consequence of having parties retain two sets of experts: a testifying expert where discovery would apply, and a non-testifying or consulting witness whose communications were not discoverable.
Under the 2010 amendments to FRCP 26, draft expert reports and communications between experts and lawyers will be deemed attorney work product and protected from discovery. This protection will extend to draft reports “regardless of the form in which the draft is recorded”. Thus, electronic versions of draft reports will be protected as well as hard copy versions.
Communications between lawyers and experts will also be protected although there are exceptions to this rule. Communications that “relate to compensation for the expert’s study or testimony”; “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed”; and “identify assumptions that the party’s attorney provided that the expert relied on in forming the opinions to be expressed” are not protected under the rule and are subject to discovery by opposing parties.
The revised rule also requires experts that are not specially retained and whose ordinary job duties did not involve giving expert testimony to submit a disclosure with “the subject matter on which the witness is expected to present evidence” and “a summary of the facts and opinions to which the witness is expected to testify.” Previously, parties who retained these so-called “treating physician experts” only needed to designate the witness but not produce a written report that sets forth their opinions. The disclosure does not need to conform to the stringent requirements of a Rule 26(a)(2)(B) report.
Finally, the revised Rule 26 will only require the expert report to identify “facts or data” that the expert considered in forming the opinions. The 1993 revisions required the expert’s report to identify a much broader scope of “other information” considered by the witness in forming the opinions.
“Facts or Data” or “Other Information”
Of course, only time will tell on whether the intentions of the new rule materialize. One preliminary concern is that the new rule may create discovery disputes on what constitutes “facts or data”. Under the new rule “facts or data” are discoverable while “other information” is not. If the courts strictly apply the rule and apply a narrow definition to the term “facts or data,” then attorneys can rest assured that their work product and communications will not become discoverable. However, if the courts are inclined to broadly interpret the term to include, in some part, “other information,” then discovery may be broader than the rule originally intended.
A broad reading of the term “facts or data” presents a host of potential problems in environmental litigation. Producing all “other information” an expert considered in his or her opinion was often a cumbersome and laborious task. Analytical data, for example, can consist of reams and reams of paper or large chunks of memory space on a hard drive. These data packages usually consist of only a few pages of data tables that provide the analytical result and then hundreds of pages of quality assurance/quality control (QA/QC) data to “back up” the result. Under the new rule, the question will become what constitutes the “facts or data”. In other words, can experts simply rely on, and subsequently produce, the data summary tables and shed the QA/QC backup as “other information”?
New Discovery Disputes?
These types of issues may create more discovery disputes, which are already a burden to clients, and may require litigants to be more aggressive in asserting the privilege and ultimately defending it. With the possibility that the rule will create more privilege disputes, there will be plenty of opportunity for the courts to weigh in on how the rule should be interpreted. Accordingly, until the courts have fully vetted the issues, litigants must be careful not to change their practices concerning protecting the work product from discovery. Any adjustments that are made to an expert’s current work product protection policy should be made slowly over time as the law regarding the new rule is developed and clarified.
First Environment’s environmental litigation support group is led by Tod Delaney, Ph.D, P.E., out of the firm’s Boonton, New Jersey headquarters. In this issue, Tod answers some frequently asked questions.
Q: What types of professionals are in your group?
Our group consists of trial-tested, experienced senior personnel with advanced degrees in engineering, geology, chemistry, business administration, and law.
Q: What types of services do you provide to clients?
First Environment's litigation support team is focused on providing scientific and engineering services to companies and their counsel to solve complex problems relating to environmental liability issues.
Q: Why do clients choose to retain First Environment?
I believe it’s because our core strengths match what clients are looking for. We are experts in forensic environmental investigation, state of the art practices, legislative and regulatory histories, and standard of care. We work with clients as both testifying and consulting experts and assist them with the development of forensic case strategies, source identification and research regarding historic industry practices, including materials used, operations conducted, wastes generated and disposal practices.
Q: To what do you attribute your success?
In the litigation field, First Environment personnel have consistently demonstrated the maturity and judgment required to effectively support clients and their attorneys who enter into mediation, arbitration and litigation. We believe our experience and expertise underscore our credibility in this field and that our superior “teaching ability” and communication skills are the bases for the reliability of our opinions and our persuasiveness in all technical and litigation forums.
Q: What do you mean by “teaching ability”?
Our industrial and regulatory experience enables us to testify regarding past and current industry standards and regulations particularly with regard to the production, management, use and disposal of hazardous materials. We have a unique understanding of how contaminants migrate and how they were generated based on historic research of past practices. We develop and compare state-of-the-art and state-of-knowledge evidence and are always teaching our clients and the court about the historic use of chemicals.
Q: What tools do you use to assist you?
Over more than 20 years, we have developed an extensive library regarding historical industrial practices, including the operation and maintenance of vapor degreasers, printed circuit board manufacturing, glass manufacturing, aircraft manufacturing, past regulatory requirements, and chemical usage, including a vast compendium of materials related to chlorinated solvents. We have also developed an interactive chronological software application for assembling and presenting timelines to support case strategies.
First Environment is currently supporting the defense of a client against a toxic tort lawsuit related to residual ground water contamination resulting from the manufacture of electronic components. The lawsuit involves claims from hundreds of neighboring property owners claiming bodily injury and property damage related to vapor intrusion of chlorinated solvents into their homes. We are working closely with national counsel on strategies for defending the lawsuits through the review of thousands of historic documents on the use and management of chlorinated solvents during the plant’s operational years.
In New Jersey, First Environment is working on a site that employed the vacuum metallization of plastic films as part of the site’s plating operations. Through the review and analysis of historical analytical data, First Environment opined that the distribution of the PCBs in the soil and sediments suggested that PCBs were discharged through the facility’s floor drain and storm water collection system into a drainage swale and then transported across wetlands to a river bed by seasonal flooding of the river. First Environment used its regulatory knowledge of the Toxic Substances Control Act (TSCA) to assert a position that even though PCBs were phased out in 1983, certain equipment that used PCBs prior to the TSCA ban and phase-out, were the source of the contamination. First Environment confirmed this assertion through the collection of samples from residues in the plating area and the floor drains in this area, and through a video inspection of the storm drainage system.
Newsletter: Environmental Litigation Support
First Environment is indeed looking forward to working with its clients on expert witnessing projects under amended FRCP 26. The expansion of the attorney work product privilege to expert communications and draft reports will surely make communications between attorneys and our team of experts more efficient and straightforward. However, as an experienced expert witness in the fields of environmental, toxic tort, and natural resource damages litigation, we feel compelled to err on the side of caution and suggest clients protect their work product until such time when the courts have fully vetted the amended rule and its scope.
What does this mean for lawyers and their experts? First Environment suggests the following:
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