Changes to Rule 26: What You Need to Know
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Posted December 2019Each year, the Mississippi Supreme Court makes changes to the court rules, some more significant than others. This year, the Court made significant changes to Rule 26 of the Mississippi Rules of Civil Procedure, which take effect January 1, 2020. These changes bring the rule more closely in line with the federal practice requirements on expert discovery, the disclosure of electronically stored information, and claims of privilege.
The new rule does not adopt the federal requirement that retained experts prepare written reports, but it does allow parties to obtain via interrogatories background information about the expert substantially similar to that currently required to be disclosed under the federal rules. It also makes explicit that the opinions of non-retained experts should be disclosed if requested and provides protections against the disclosure of draft expert interrogatory responses and communications between a lawyer and a retained expert. Parties must supplement or correct any expert disclosure or deposition response “in a timely manner” if the party learns that a prior disclosure or response is incomplete or incorrect.
One long overdue change was the elimination of the requirement that a party obtain a court order in order to depose an opposing party’s expert. Although lawyers commonly agreed to make experts available for deposition without the need for court intervention, parties would sometimes refuse to make an expert available for deposition without a court fight. This change should be a welcome sight to trial judges who would rather not spend hearing days listening to lawyers argue over motions to depose experts.
The new rule also allows a party to withhold electronically stored information from sources the party identifies as “not reasonably accessible because of undue burden or cost,” but if a motion to compel is filed, the burden will be on the party withholding the information to show that such an undue burden exists. And, even if the party meets that burden, the court may still order that the information be produced under certain conditions to reduce the burden or cost.
Parties must specifically identify any discoverable information withheld from production under a claim of privilege. A claw-back provision has been added which allows a party who mistakenly disclosed privileged information to have it returned or destroyed.
The rules committee should be commended for these changes. There are additional discovery rules that can and should be updated, but these changes should be useful to lawyers on both sides of the bar.
- James E. Graves, III is a shareholder with Wise Carter.