It has just been brought to our attention by a sharp-eyed lawyer at Holland and Knight that an article Bexis wrote and published five years ago (in 2006) concerning problems with Rule 26, has recently been republished in by the Florida Bar Trial Lawyers Section in a publication called “The Advocate” (see the most recent issue from the choices on this webpage). The article is titled, “Testifying Experts and Privileged Material – Waiver Is Easier Than You Might Think,” and was prompted by a troubling case in our neck of the woods, Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005), that set the stage for all kinds of maneuvering over expert disclosures.
That article was accurate – indeed, cutting edge – back in 2006. However, the problems Bexis described were sufficiently serious that the Federal Rules Committee acted and amended Rule 26 (again) effective in December, 2010 to address (and largely do away with) the expert disclosure problems discussed in that 2006 article. As this was an issue of continuing interest, we blogged about this most recent amendment to Rule 26, here.
Anyway, the point is – caveat emptor – with a free publication (or a free blog for that matter) you get what you pay for. We don’t want anybody to be confused by the Advocate‘s unfortunately timed republication to think that what Bexis wrote back in 2006 is an accurate description of expert discovery as it stands in 2011. It isn’t. That problem has been (about 95% of it, anyway) fixed.