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Expert Discovery: Are the Revisions to Rule 26 of the FRCP in 2010 Retroactive?

by Matthew Lee | Articles | Share

I’m sure many of you are familiar with the revisions to Rule 26 of the Federal Rules of Civil Procedure (FRCP) changing the game as to discovery of expert materials. Well, we have been slugging it out with defense counsel for the last couple of months in a big case and they’ve asked for our experts’ files. Before handing them over lock, stock, and barrel, we refreshed our memories on the recent changes. In a nutshell, the new Rule 26 made it so two categories of documents are no longer discoverable:

  • Drafts of an expert’s report (Rule 26(b)(4)(B)); and
  • Communications between a party’s attorney and the expert (with a few exceptions) (Rule 26(b)(4)(C)).

Our case was removed to federal court in early 2010, before the revisions to the FRCP became effective on December 1, 2010. This has resulted in some disagreement about which version of the rules apply to our case, i.e. do we have to hand over our expert’s draft reports and emails with us? As you’ve probably guessed, the defense guys in our case think that the old version of the rules applies based on when our case was docketed in federal court. I think they’re wrong. Here’s why:

The Rules Enabling Act

The Rules Enabling Act (28 U.S.C. § 2074) says:

“The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies….”

So, did the Supreme Court weigh in on whether they wanted the revisions to apply to pending cases?

They did.

SCOTUS Implementing Order

When the SCOTUS presented the rule changes to Congress, the order said:

“That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” (emphasis added)

You can check out the implementing order here (quote is from page 3).

Case Law

Courts generally favor retroactive application of the amended FRCP when it’s fair.

“[T]o the maximum extent possible, the amended Rules should be given retroactive application….” Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir.1992).

“Retroactive application is particularly appropriate where a procedural rule is changed after a suit arises, because rules of procedure regulate secondary rather than primary conduct.” 35A C.J.S. Federal Civil Procedure § 15.

And, finally, the Court in United States v. Sierra Pac. Indus., CIV S-09-2445 KJM EF, 2011 WL 2119078 (E.D. Cal. May 26, 2011) had to figure out which version of Rule 26 applied to a pending case. The Court cited the SCOTUS order I linked above and found the new rule applied, saying: “[t]his proceeding was already pending on December 1, 2010; therefore, the new rule applies to this dispute unless the result would be either unjust or impracticable.”

So, it looks like the Stones may have been right (at least with regard to an expert’s file): you can’t always get what you want.

Happy litigating!


Matthew Lee


Matt handles complex litigation, primarily construction defect, product liability, business disputes, and wrongful death cases, and has secured substantial verdicts and settlements in a variety of matters, including multi-million dollar verdicts for homeowners associations in construction defect litigation and large settlements in wrongful death and product liability cases.

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