There have been some recent changes to the discovery rules in Maine regarding expert witnesses. In the past, basically every document that the expert saw was fair game for discovery and had to be produced; even early drafts of designations, reports, and correspondence with counsel. Recent changes to the Maine Rules of Civil Procedure, however, have limited this discovery to some extent.

The revised rule 26 of the Maine Rules of Civil Procedure now protect certain communications between counsel and an expert. The rule now states:

(C) Communications between the party’s attorney and any testifying expert witness, regardless of the form of the communications and including drafts of Rule 26(b)(4) disclosures ordered by the court and reports to the attorney, are protected from discovery except to the extent that the communications (i) relate to or contain information about compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

Communications between the party’s attorney and any testifying expert witness not meeting one or more of the above three criteria may be obtained in discovery only (i) as provided in Rule 35(b) or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

This means it is no longer necessary to disclose early drafts of designations and communications between the attorney and the expert, unless the communication provides information the expert relies on in forming opinions or compensation for the expert. In the past, it was common practice not to share prior drafts of designations with experts, to prevent having to disclose it in discovery. Instead, counsel engaged in the cumbersome process of reading early drafts to experts and having them recommend changes in a conversation. This was difficult, as the expert could not read the document, but, had to listen and try to draft appropriate changes in his/her head. Now, it is possible to send a draft to the expert and have him or her recommend changes, as necessary, without fear of the document being produced to the opposing party and having to explain every niggling detail of changes made to the drafts.

It is important to note, though, that this does not mean all communications between counsel and the expert are protected from discovery. If the attorney communicates facts or information to the expert that the expert considers in forming his or her opinions, or assumptions the expert relied on, then, the communication must be produced. Note that the word “considers” means that the expert need not rely on the facts or information. If the expert considered it, even if rejecting it or finding it to be of no use, the communication must be produced. Therefore, care must still be used in communicating with experts in the case, and careful response to discovery requests must be made to be sure all discoverable communications are turned over.

Nonetheless, these changes to the discovery rules regarding experts will prove to be helpful in working with experts, as it will give attorneys and experts some more, albeit limited, freedom in their communications and preparation of important expert opinion documents.

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