In cases where both Iowa and federal courts have jurisdiction, amendments to Federal Rule of Civil Procedure 26 effective December 1, 2010 will have an impact on the initial choice of where to file and on the removal analysis if the plaintiff files in state court.
The amendments affect expert witness discovery. Previously, in both Iowa and federal courts, there was no work product protection for attorney-expert communications and reports were almost never required for experts who had not been retained for purposes of the litigation.
That remains the case in Iowa courts, but the amendments to the federal rules made these changes in federal courts:
First, new Rule 26(a)(2)(C) requires that the expert witness disclosure include, for witnesses from whom the rules do not require a written report, the subject matter on which the witness is expected to testify and "a summary of the facts and opinions to which the witness is expected to testify." In other words, the attorney effectively needs to prepare a summary report for the expert.
It is difficult to see what stating the expert's expected "subject matter" adds to the requirement of stating the expert's expected facts and opinions, but the rule requires both.
In Iowa, the standard trial scheduling order -- and Iowa Code section 668.11 for licensed professionals -- does require a statement of the non-retained expert's expected subject matters, but the new federal requirement of expected facts and opinions clearly adds additional substance to the disclosure in federal court. The Advisory Committee warns that "Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have." Nevertheless, in federal court, attorneys will now need to be diligent about obtaining sufficient information from the non-retained expert witnesses in order to meet the disclosure requirements. In contrast, in Iowa, attorneys can continue to punt on the question of the non-retained expert's opinions by telling opposing counsel that no report is required and, if opposing counsel wants the expert's opinions, he will have to interview or depose them.
Second, for retained experts, the federal rules no longer require the disclosure of "other information" the expert considered (leaving just "facts and data"), draft reports, and expert-counsel communications (with exceptions for compensation information and attorney-provided facts, data, and assumptions). The protection of draft reports and many expert-counsel communications is a significant change that will eliminate many expert witness deposition questions in federal court (e.g., no more "what did you and attorney talk about during the break?"). The Advisory Committee explained the reason for the change as follows:
The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen. Attorneys may employ two sets of experts--one for purposes of consultation and another to testify at trial--because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses. At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work.
It would not be surprising to see Iowa and many other states eventually adopt these changes as well. In the meantime, the differences in the expert discovery rules may impact the decision on whether to proceed in federal or state court in situations where both courts have jurisdiction.
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