Drafts and Communications

The problem the 2010 amendment was written to solve

Before December 2010, a testifying expert's drafts and correspondence with counsel were routinely discoverable, and the profession adapted in expensive ways. The Advisory Committee described what it had been told: “The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen.” The Note goes on to describe parties retaining two sets of experts — one for consultation and another to testify — because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses.

The response was two new subparagraphs, both added 28 April 2010 and effective 1 December 2010. They did not create a privilege. They extended an existing protection, and the difference between those two things accounts for most of what is said wrongly about them.

What the two subparagraphs actually say

FRCP 26(b)(4)(B), Trial-Preparation Protection for Draft Reports or Disclosures:

“Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.”

FRCP 26(b)(4)(C), Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses:

“Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

• (i) relate to 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.”

Two structural features are visible on the face of that text. Both subparagraphs operate purely by cross-reference — whatever Rules 26(b)(3)(A) and (B) do, they now do for drafts and for these communications. And (B) is broader than (C) as to whom it covers: drafts of “any report or disclosure required under Rule 26(a)(2)” include drafts of a Rule 26(a)(2)(C) summary, while the communications protection reaches only witnesses required to provide a Rule 26(a)(2)(B) report.

Protected as work product, which is not the same as protected

The most common statement about this rule — that draft reports are absolutely protected and nothing in a draft is ever discoverable — is not what the rule says. The cross-reference is to work-product protection, and FRCP 26(b)(3)(A) is expressly qualified: protected materials “may be discovered if … the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” FRCP 26(b)(3)(B) then requires a court ordering such discovery to protect “the mental impressions, conclusions, opinions, or legal theories of a party's attorney.”

Drafts are therefore protected the way fact work product is protected: strongly, and defeasibly. The accurate statement is that a party seeking drafts bears a real burden and rarely carries it, not that the door is locked.

The appellate authority on the scope of the 2010 amendments came out of the Chevron and Ecuador litigation under 28 U.S.C. § 1782 — In re Application of Republic of Ecuador, 735 F.3d 1179 (10th Cir. 2013); Republic of Ecuador v. Hinchee, 741 F.3d 1185 (11th Cir. 2013); and Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014). The through-line is that expert trial-preparation protection after 2010 comes from Rules 26(b)(4)(B) and (C) specifically, and not from a general Rule 26(b)(3) shield over everything a testifying expert touched. As the Eleventh Circuit put it, it is the intention of the rules committee to protect the mental impressions and legal theories of a party's attorney, not those of its expert.

Three exceptions, and why two of them use different verbs

The carve-outs in (C)(i)–(iii) are narrow, but they are real, and they were drafted with more care than they are usually read with.

(i) Compensation. Communications that relate to compensation for the expert's study or testimony are outside the protection entirely. Together with the compensation statement required by FRCP 26(a)(2)(B)(vi), this is what makes the billing side of the engagement examinable.

(ii) Attorney-supplied facts or data, if considered. The verb is the broad one. Facts or data that counsel provided and that the expert considered come out, whether or not the expert ultimately used them.

(iii) Attorney-supplied assumptions, if relied on. The verb is the narrow one. An assumption counsel supplied is exposed only where the expert relied on it in forming the opinions to be expressed.

The mismatch is deliberate: attorney-supplied facts come out on the broader standard, attorney-supplied assumptions only on the narrower. It is also the clearest internal evidence that “considered” and “relied on” are not synonyms anywhere in the expert rules.

One further limit is easy to miss. Both (ii) and (iii) are framed as “except to the extent that the communications … identify.” What comes out is the identification, not the document. An otherwise-protected email that also conveys an attorney-supplied assumption is discoverable as to that assumption and no further.

What the rule never covered, which is most of the file

The 2010 Note is explicit about the limits of what it created: “Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions,” and “the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule.”

Working outward from the text, the following sit outside both subparagraphs:

• The expert's own notes. Practitioner materials collecting the post-2010 decisions state that expert notes are protected by neither provision, because they are neither drafts of a report nor communications between the attorney and the expert. Notes of a conversation with counsel are the sharpest version of the problem, and the question has not been resolved at circuit level.
• Communications with anyone other than retaining counsel — the client, co-experts, consulting experts, subcontractors and outside laboratories. One reported example: where counsel directed the client to prepare a memorandum analyzing financial information and the memorandum went to the expert, the memorandum was ordered produced.
• Testing records and notes of testing, named in the Note as an express example.
• Billing records, through exception (C)(i) and the Rule 26(a)(2)(B)(vi) compensation statement.
• Everything belonging to a witness disclosed under Rule 26(a)(2)(C), for whom the communications protection does not exist at all.

Whether protection extends to communications with the expert's assistants, with in-house counsel, and with non-lawyer agents of the party is less settled; the Note contemplates coverage of assistants, and the treatment of party agents is materially less clear.

Preservation rather than curation

The defensible posture toward the file, and the one recommended in ABA Section of Litigation materials on working with experts, is to preserve everything and litigate discoverability if it is contested. Those materials suggest the engagement letter itself carry a provision reminding the expert to preserve all documents relating to the engagement, including notes, electronic communications and draft reports, on the reasoning that it is generally preferable to preserve and litigate discoverability than to face spoliation claims about deleted drafts.

A separate point is often confused with that one. Some experts work in a way that generates few or no intermediate drafts — drafting in a single document, or not circulating anything until the report is complete. That is a workflow choice, not a legal requirement, and it does not affect the discoverability of anything else in the file. Not creating a draft and destroying one that exists are different acts, and only the second creates exposure.

The rule's protection is also worth using for what it was built for. Because drafts and communications with a report-writing expert are protected, counsel can discuss the substance of the opinion, provide facts and data, identify assumptions, and review the analysis with the witness — conduct the amendment was designed to make ordinary again, subject to the three exceptions.

Where all of this surfaces, which is the deposition

The three exceptions map exactly onto three of the most productive lines of expert examination: compensation, the facts and data counsel supplied, and the assumptions counsel supplied. An expert who has not been told which questions the rule permits tends to answer them badly — either reflexively invoking protection that does not apply, or conceding more than the exception reaches.

There is a limit that no amount of preparation moves. The protection covers communications; it does not convert an attorney-authored opinion into the expert's own. FRCP 26(a)(2)(B) still requires the report to be prepared and signed by the witness, and the questions that expose a shaped opinion — who selected the documents, what was asked for and not provided, what was described as an assumption — run through exceptions (ii) and (iii) rather than around them.

Read as a whole, the 2010 package is narrower than its reputation. It shields the drafting process and the lawyer's side of the conversation. It leaves the expert's own work, the expert's own notes, and every communication outside the attorney relationship where they were before.

Frequently Asked Questions

Published 2026-08-12