Judicial Conference Considers New Expert Disclosure Requirements

Pandemic or no pandemic, the yearly process of updating the federal rules continues. This year, the Judicial Conference of the United States is considering significant changes to Rule 16 of the Federal Rules of Criminal Procedure that would expand the information federal prosecutors must provide defendants about their expert witnesses. In August 2020, the Advisory Committee on Criminal Rules proposed what the New York City Bar described as “the first set of changes—and the most sweeping ones—to criminal expert discovery in more than twenty-five years.”

The new rule would require the government to disclose not only the expert(s) it plans to introduce as part of its own case but also the expert opinion(s) it plans to introduce to rebut expert testimony timely disclosed by the defense. It would require that the disclosure include “a complete statement of all the opinions that the government will elicit” from the witness, rather than simply a summary of them. Moreover, beyond the witness’s qualifications, the government would be required to list both (1) the expert’s last ten years of publications and (2) the cases in which the expert has testified in the last four years. Defendants would be required to make similar disclosures and both sides would be required to have their experts approve and sign the disclosure.

The amended rule would also standardize the timing of expert disclosures. It would require district courts, either by case-specific order or local rule, to set a time for the parties to make these reciprocal disclosures.

Public comments on the rule have been mostly positive, and it has drawn support from both he National Association of Criminal Defense Lawyers (“NACDL”) and Federal Magistrate Judge’s Association. But both groups expressed some reservations about allowing deadlines to be set by local rule, and the NACDL was particularly concerned with language that could be read to suggest the required disclosures must, on their face, be sufficient to survive a Daubert challenge.