Rule 26(b)(4)(B) protects drafts of expert reports regardless of form, and Rule 26(b)(4)(C) protects attorney-expert communications except those relating to compensation, facts or data provided, or assumptions supplied by counsel.
The 2010 amendments established these protections.
Alternative Names:
Draft Protection, Expert Draft Privilege
Why it Matters?
The three exceptions are where discovery concentrates, and the assumptions exception is the most consequential since counsel-supplied assumptions frequently drive the opinion. Asking an expert which assumptions came from counsel is standard deposition practice and is not protected. State practice differs substantially, and several states permit full discovery of drafts and communications, which requires different handling in those forums.
Frequently Confused with
Related terms
Frequently asked questions
What communications remain discoverable?
Does the protection apply in state court?
