Expert Witness Discovery Rules Changed on December 1, 2010
Forensic accountants and valuation experts will now enjoy greater work-product protections as a result of key changes in the Federal Rules of Civil Procedure. Draft reports and most communications between an expert and the retaining attorney are considered privileged. Over the years, opposing sides employed a variety of time-consuming, expensive strategies in the attempt to maintain confidentiality. Draft reports and attorney-expert interactions are crucial elements in developing defensible opinions of value that are consistent with case law and comprehensible to the average person. These revisions, effective December 1, 2010, do not change the responsibility of the court under Daubert. Although attorney-expert communications are no longer automatically discoverable, the court still determines what evidence will be admitted in any given case.
We recommend that appraisers retain all source documents in the job file to verify facts and data used to prepare the report; limit the number of drafts shared with the retaining attorney; and not rely on assumptions provided by the attorney unless those assumptions are disclosed in the report.