“The facts and data considered by the witness . . . .” That is what expert witnesses must disclose to the other side after forming their opinions, although the rule was not always this way. Before 2010, you had to disclose “the data or other information” considered by an expert. But for many that was too broad, potentially encompassing attorney thoughts or impressions. So the committee changed the rule, and we now have the “facts and data” standard. As the committee explained, “The refocus on ‘facts or data’ is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.” Rule 26(a)(2)(B)(ii) advisory committee note to 2010 amendment. We wrote on the 2010 changes to Rule 26 here.
Your work product is therefore somewhat safer from disclosure than it once was, but if an expert considered “facts and data,” those facts and data must be disclosed. That is the lesson of In re Benicar (Olmesartan) Products Liability Litigation, No. 15-2606, 2017 WL 970263 (D.N.J. Mar. 13, 2017), where an MDL judge ordered the plaintiffs to produce medical records upon which their experts had relied.
The records at issue appear to have involved patients other than the plaintiffs, which we guess is why the production of medical records was the least bit controversial. As it turned out, those other patients’ records became discoverable when two experts considered them in forming their opinions. One, for example, reviewed the charts of certain patients and relied on them in reaching his ultimate conclusions. Id. at *3. The other similarly confirmed that his review of a number of patient charts “contributed to his thinking.” Id.