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Court says expert draft reports off-limits

Lawyers litigating a patent suit can protect drafts of their expert reports under a new amendment to federal discovery rules, a magistrate judge for the Norfolk U.S. District Court ruled last week.

An amendment to Fed. R. Civ. P. 26(b)(4) extends work-product protection to drafts of expert reports and disclosures and to attorney-expert communications, both of which used to be subject to discovery.

The change took effect Dec. 1, for cases filed after that date, and to pending proceedings, “insofar as just and practicable.”

When is it “just and practicable” to apply the protective amendment to a pending case? It helps if both sides agree that’s what they want.

That’s what happened in CIVIX-DDI LLC v. Metro. Regional Info. Systems Inc. The parties made a joint motion to establish that the Dec. 1 amendment applied to their case, filed on Aug. 30.

Apparently the parties did not want to rely on an informal agreement to keep expert draft reports off-limits. They went to court and got a formal ruling to that effect.

One or both of the parties evidently was “fearful that the other will seek to discover expert witness trial preparation materials notwithstanding any stipulated agreement they might reach on this issue,” wrote Magistrate Judge F. Bradford Stillman.

The first expert witness disclosures in the case are not due until June 13, Stillman said. That leaves plenty of time for the parties to conduct discovery of testifying expert opinions, without getting into draft expert reports and attorney-expert communications, he said.

By Deborah Elkins

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