Defining the “Fuzzy Edges” of Rule 26(b)(4)

draft pic.1As most attorneys involved in civil litigation are aware, Rule 26(b)(4) of the Federal Rules of Civil Procedure was amended in 2010 to “address concerns about expert discovery.” ADVISORY COMMITTEE NOTES TO 2010 AMENDMENTS. Specifically, the Advisory Committee was concerned about the “undesirable effects” of “routine discovery into attorney-expert communications and draft reports.” Id. Therefore, the Committee amended Rule 26(b)(4) “to provide work-product protection against discovery regarding draft expert disclosures or reports and . . . communications between expert witnesses and counsel.” Id. [1]

Although the amendments took effect in 2010, there is very little case law addressing the practical impact of the amendments.[2] In a recent case, the Southern District of New York attempted to define the “fuzzy edges” of Rule 26(b)(4)(B). See Deangelis v. Corzine, 11 Civ. 7866 (S.D.N.Y. January 7, 2016).

In the case, the plaintiff sought an order compelling the defendants’ expert witness, Jerry Markham, and the defendant’s non-testifying consultants, Cornerstone Research, to produce documents in response to a subpoena duces tecum. The defendants refused to produce the requested documents, arguing that the materials were drafts of Mr. Markham’s report, and were therefore, protected by Rule 26(b)(4)(B). The documents at issue contained a “write-up” and a “chart” both prepared by Cornerstone to assist Mr. Markham in preparing his report.

The defendants first argued that the documents at issue were protected because they “were clearly marked as ‘drafts’”. The Court dismissed this argument. According to the Court, the fact that a document is labeled as a draft is not conclusive evidence that it is, in fact, a draft.

The defendants next argued that the documents were protected because (1) they were created for the purpose of being included in Mr. Markham’s report and (2) they were actually included in early versions of the report. After reviewing the documents in camera, the Court found that the documents at issue were protected from disclosure by Rule 26(b)(4)(B). According to the Court, the “documents were prepared not simply to aid Mr. Markham in drafting his report, but rather to form part of the report itself and were in fact included in preliminary versions of that report.” In short, the documents constituted drafts of Mr. Markham’s report, and were therefore, protected. Accordingly, the Court denied the plaintiff’s motion to compel.

The case clarifies one important issue – simply labeling a document as a “draft” does not automatically protect it from disclosure under Rule 26(b)(4)(B). Rather, the document must actually be included in earlier versions of the expert’s report to be considered a “draft.” Cozen O’Connor will continue to keep subrogation professionals advised as more case law develops regarding the practical impact of amended Rule 26(b)(4).

Footnotes:

[1] Rule 26(b)(4)(B) provides:
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.

[2] According to the Southern District of New York, only the Ninth, Tenth and Eleventh Circuits have considered the impact of Rule 26(b)(4)(B). See Deangelis v. Corzine, 11 Civ. 7866 (S.D.N.Y. January 7, 2016).

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