Proposed Changes to the Maryland Rules Regarding Discovery of Experts
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August 4, 2022The Maryland Standing Committee on Rules of Practice and Procedure has issued its 211th Report and proposed rules changes.
One of the most significant proposals is to modify Rule 2-402 to follow the 2010 amendments to Fed.R.Civ.P. 26 regarding expert discovery. The Committee explained:
In 2010, the Federal Rule was amended to preclude from discovery two categories of information: (1) information in draft reports of experts and (2) communications between a party’s attorney and an expert witness, except to the extent that the communication (i) relates to compensation for the expert’s study or testimony, (ii) identifies facts or data that the attorney provided and the expert considered in forming the opinion to be expressed, or (iii) identifies assumptions that the party’s attorney provided and the expert relied on in forming the opinions to be expressed. See Fed. R. Civ. P. 26 (b)(4).
The Federal Rules Committee’s explanation for the change was that routine discovery into attorney-expert communications and draft reports had “undesirable effects.” Costs had risen as “[a]ttorneys 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.” See Fed. R. Civ. P. 26 advisory committee’s note to 2010 amendment.
The Rules Committee found merit in that concern and, with some style changes, recommends adopting the Federal approach.
The proposal states:
(C) Protection for Draft Reports or Disclosures
A party is not entitled to the discovery of drafts of any report or disclosure required under subsection (g)(1)(A) of this Rule regardless of the form in which the draft is recorded.
(D) Protection for Communications Between a Party’s Attorney and Expert Witnesses
A party is not entitled to the discovery of communications between another party’s attorney and an expert witness, regardless of the form of the communication, except to the extent that the communication (i) relates to compensation for the expert’s study or testimony, (ii) identifies facts or data that the attorney provided and the expert considered in forming the opinion to be expressed, or (iii) identifies assumptions that the party’s attorney provided and the expert relied on in forming the opinions to be expressed.
Committee note: Subsections (g)(1)(C) and (g)(1)(D) are derived from Fed. R. Civ. P. 26 (b)(4). See the Advisory Committee notes for the 2010 amendment attached to the federal provisions for discussion of how these provisions are intended to operate.
The Reporter’s Note states:
Proposed new subsection (g)(1)(D) prohibits discovery of communications between attorneys and experts, with some exceptions. The subsection clarifies that some communications are discoverable, including those relating to compensation, facts and data provided to and considered by the expert, and assumptions provided to and relied on by the expert. Protecting certain attorney communications with an expert witness encourages open communication and concentrates discovery on the communications that contributed to the expert’s opinion.
A Committee note after the new subsections states that the subsections are derived from Fed. R. Civ. P. 26 and refers to the guidance provided in the relevant federal Advisory Committee notes. The language of the proposed Committee note is modeled after the first paragraph of the Committee note at the end of Rule 5-902.
A proposed “amendment to Rule 2-652 repeals an attorney’s common law retaining lien on his or her client’s papers that are in the possession of the attorney until the client’s debt for legal services provided by the attorney have been paid.” The Committee proposed modifications to a number of State District Court rules and other specialized rules.
One other noteworthy feature is that the Committee appears to have decided not to modify the voluntary dismissal rule. Court of Appeals Follows My Proposal on Voluntary Dismissal Rule.
For blogs comparing the Maryland and Federal Rules, please click on the “MD Rules v. Federal Rules of Civil Procedure” tag at the beginning of the blog page. Significant differences between the two systems remain. See, e.g., Maryland v. Federal Rules on the Scope of Discovery and Proportionality.
