Federal Rule of Civil Procedure (FRCP) 26(b)(4) was amended in 2010 to shield from discovery (i) drafts of expert witness reports and (ii) certain pretrial communications with expert witnesses. This article provides the details of this earlier change. Effective July 2012, the U.S. Tax Court “Rules of Practice and Procedure” were amended for the same limitations in expert witness discovery.
Tax Court Rule 70(c)(4) is now as follows:
(4) Experts:
(A) Rule 70(c)(3) protects drafts of any expert witness report required under Rule 143(g), regardless of the form in which the draft is recorded.
(B) Rule 70(c)(3) protects communications between party’s counsel and any witness required to provide a report under Rule 143(g), regardless of the form of the communications, except to the extent the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s counsel provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s counsel provided and that the expert relied on in forming the opinions to be expressed.
