Barkett revisits his review of the amendments to Rule 26(a)(40)(B) and (C), which he last reported on for the ABA Section of Litigation Annual Conference in April 2015, with summaries of holdings in recent cases determining what is and isn’t work product under the new rules. In the article, Barkett summarizes rulings involving expert-prepared exhibits used in presentation to counsel, facts or data provided by counsel to the expert in the form of edits, and expert-to-expert communications, among others.
“What are the takeaways here?” Barkett writes. “You need to know your jurisdiction. You must be familiar with the case law and the nuances in the case law. You still have to exercise care in what you say to an expert, how you say it, and what you provide to the expert.”