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De-escalate the expert discovery wars: the federal rules permit maximum expert discovery, but it can be to your advantage to agree with your opponent to limit it. Here are tips for negotiating the best protection and drafting an ironclad discovery agreement.

Article Excerpt
The phrase "mutually assured destruction" might conjure up Cold War-era images of the United States and former Soviet Union stockpiling nuclear arms. For trial lawyers, though, the phrase often resonates as a description of the standoff between opposing parties over the breadth of expert discovery. The battle has been escalating since adoption of the 1993 amendments to Federal Rule of Civil Procedure 26, which permit discovery of "all data and information considered" by an expert.

History teaches us that a plan for mutually assured destruction eventually leads to compromise, when the opposing sides come to realize that the cost and burden of maintaining the balance of power is prohibitive. This result appears to be happening now with expert discovery.

In August 2006, the American Bar Association's House of Delegates adopted a recommendation for amendments to Rule 26 that, in essence, would preclude discovery of attorney-expert communications and draft expert reports. (1) If implemented, these amendments should greatly reduce the costs and burdens associated with expert discovery and greatly benefit consumers in litigation.

As this article went to press, it was unclear if the recommended rule changes will be implemented. At its November 2007 meeting, the Advisory Committee on Civil Rules considered reports from its subcommittee on Rule 26 regarding a preliminary proposal to amend Rule 26 on discovery of expert witnesses. The committee agreed to carry forward consideration of the proposals to its spring 2008 meeting. Accordingly, amendments to the rules to de-escalate expert discovery wars are still delayed. (2)

Fortunately, in the meantime, a viable alternative exists: You can negotiate with opposing counsel to limit expert discovery. What you forgo or allow is defined entirely by the agreement that you strike with your adversary.

Some attorneys, especially litigators at large corporate law firms, have been negotiating these agreements as a matter of course. Trial lawyers, however, are often reluctant to enter into such agreements, hoping instead to outsmart their opponent.

Perry Mason moments, with your opponent's expert admitting a fatal flaw in the report (which turned out to have been written by an overzealous defense attorney), may seem enticing, but in practice they are rare and typically illusory. If the expert stands by his or her opinions, the defense attorney's contribution to the report typically is of little significance.

Generally, it's to your benefit to seriously consider whether full expert discovery is worth the burden and expense of having to provide reciprocal expert discovery. And negotiating limits on expert discovery will enable you to work effectively with your own experts, free of the fear that every matter considered will potentially be available to your opponent.

Absent an agreement limiting expert discovery, what are you entitled to? Depending on whether you are in federal or state court, you need to examine the rules and research case law to understand the precise scope of discovery permitted.

Some state courts have adopted rules limiting expert discovery: New Jersey, for example, adopted rules...

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