Expert drafts: what the other side can no longer request

It is a rule change that reverses a Supreme Court decision. Until this Act, if you hired an expert for your civil case, the drafts of their report and your emails with them were discoverable: the other side could ask for them. Act 172-2026 places them under the attorney work-product doctrine and takes them out of discovery, with three closed exceptions. If you have a civil case with expert evidence, this changes what you must hand over and what you can request.

It applies to expert discovery in civil cases governed by the Rules of Civil Procedure of 2009. The protection covers drafts of reports prepared by experts and communications between the attorney and the expert. The Act does not distinguish between one party’s expert and the other’s: the rule is the same on both sides.

Information pending verification.

Information pending verification.

1. 1

   Step 1: What is now outside discovery

   The rule says it in two sentences: “Drafts of the reports prepared by experts, as well as communications between the attorney and the expert, are protected by the attorney work-product doctrine. They therefore fall outside the scope of discovery.” These are two distinct things and both are covered: the report drafts, and the attorney-expert communications.

2. 2

   Step 2: The medium does not matter: email, text or shared document

   This part of the sentence is the one most people skip over, and it is deliberate: the protection applies “regardless of the form and medium in which the draft or the communications are written and kept.” There is no need to game the channel. A draft in a shared document, an exchange by text message and a printed letter all get the same treatment under this rule.

3. 3

   Step 3: The three exceptions the court may still order

   The rule lists them and they are worth reading carefully, because they are narrow and specific. “By way of exception, the court may order discovery of such drafts or communications to the extent that they: (a) relate to compensation for the expert’s study or testimony; (b) identify facts or data supplied by the party’s attorney and that the expert considered in forming their opinions; or (c) identify assumptions supplied by the party’s attorney and on which the expert based their opinions.” Note three things: it is “may,” not “shall”; it is “to the extent that,” not the whole communication; and (b) speaks of what the expert considered, while (c) speaks of what they based their opinions on.

4. 4

   Step 4: What is still discoverable: the expert and their opinions

   This Act does not hide the expert or their conclusions, and that is worth saying so nobody gets complacent. The rest of the rule is unchanged: a party may, through interrogatories, require the name and address of the experts the other party has consulted and of those it intends to present at trial; and as to the latter, may require a statement of the subject matter on which the expert proposes to testify, a summary of their opinions, and a brief statement of the theories, facts or arguments supporting those opinions. What is protected is the road, not the destination.

5. 5

   Step 5: The clause still open at the end

   The rule closes with a broad power that survives intact: “On a party’s request, the court may order discovery of expert evidence by any other means, subject to such conditions or limitations as it deems reasonable.” That is, the court retains discretion to manage expert discovery beyond the three exceptions, on a party’s request and under the conditions it deems reasonable.

6. 6

   Step 6: Where the change comes from

   We tell this because it explains why the rule says what it says, and we attribute it to where we read it: this Act’s statement of motives. Per that statement, in interpreting subsection (c) of Rule 23 the Supreme Court held in McNeil Healthcare, LLC v. Municipio de Las Piedras et al. (II), 206 DPR 659 (2021), that an expert witness’s report drafts and the communications between the expert and retaining counsel were not protected by work product, and were subject to the broad and liberal discovery that governs here, declining to adopt Federal Rules 26(b)(4)(B) and 26(b)(4)(C). The Legislative Assembly says this Act incorporates those federal amendments, in force since December 1, 2010. We did not read the Supreme Court opinion or the federal rules: the foregoing is what the statement of motives asserts.

7. 7

   Step 7: When it takes effect

   Section 2 is one line long: “This Act shall take effect immediately upon its approval.” There is no written transition period, and no provision saying what happens to discovery already requested or already produced in a pending case. The Act does not say, and we do not invent it.

There is nothing to file with an agency: this is a procedural rule that operates inside your case, before the court hearing it. If the other side requests drafts or communications with your expert, the objection and any request for a protective order are filed in that same case. This guide does not replace your attorney’s advice, and the Act creates no administrative procedure.

• Believing the expert became protected: what is protected are the drafts and the communications, not their name, subject matter or the summary of their opinions.
• Thinking an email or text message falls outside: the rule protects regardless of the form and medium.
• Reading the three exceptions as if they opened the whole communication: the rule says “to the extent that,” not the entire communication.
• Assuming the court must order discovery when an exception applies: the rule says “may,” not “shall.”
• Confusing exception (b) with (c): one concerns facts or data the expert considered; the other, assumptions on which they based their opinions.
• Assuming there is a transition period: the Act takes effect immediately upon approval and says nothing about discovery already produced.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov