August 2026 | Client Alert
In McNeil Healthcare, LLC v. Municipio de Las Piedras et al., (II), 206 D.P.R. 659 (2021), the Puerto Rico Supreme Court interpreted the Puerto Rico Rules of Civil Procedure to conclude that draft reports prepared by a testifying expert, as well as communications between the expert and retaining counsel concerning those reports, were not protected by the work-product doctrine and were therefore subject to Puerto Rico’s broad discovery rules. In reaching that conclusion, the Supreme Court declined to adopt the protections afforded to expert drafts and attorney-expert communications under Federal Rules of Civil Procedure 26(b)(4)(B) and 26(b)(4)(C). This created a substantial disparity between the two judicial forums as regards these crucial expert matters in complex civil cases.
In an apparent reaction to such disparity, Puerto Rico has enacted Act 172-2026, amending Rule 23.1(c)(1) of the Puerto Rico Rules of Civil Procedure. Under the amended Rule 23.1(c)(1), draft reports prepared by experts, as well as communications between attorneys and experts, are now protected as attorney work product and fall outside the scope of discovery, regardless of the form or medium in which the draft or communication is prepared, maintained, or exchanged.
However, the protection is not absolute. The amended Rule 23.1(c)(1) permits a court to order discovery of attorney-expert communications to the extent that they: (i) relate to the expert’s compensation for the study or testimony; (ii) identify facts or data provided by counsel that the expert considered in forming an opinion; or (iii) identify assumptions provided by counsel on which the expert relied in forming an opinion.
In enacting the amendment, the Puerto Rico Legislature recognized that communications between attorneys and experts, including draft reports, may reveal strategic assessments regarding the presentation of a case. The Legislature concluded that protecting those materials promotes candid attorney-expert communications and allows parties to prepare their cases without unnecessarily exposing litigation strategy, while preserving access to information relevant to evaluating the basis of an expert’s opinions.
The amendment, which became effective immediately, brings Puerto Rico expert discovery practice closer to the federal framework and represents an important departure from the rule announced in McNeil Healthcare.
Going forward, attorneys and parties litigating in Puerto Rico should account for these protections when retaining and communicating with experts, preparing expert reports, serving or responding to expert discovery, and assessing whether particular attorney-expert communications are discoverable. The attorneys at O’Neill & Borges are available to assist clients in evaluating how these changes may affect their litigation strategy and discovery obligations.
For additional information or assistance, please contact your regular O’Neill & Borges attorney or write to info@oneillborges.com.
This O’Neill & Borges Client Alert is prepared for general information purposes only. It does not constitute legal advice or a legal opinion; nor does it establish an attorney-client relation with the recipient. For further information or to establish an attorney-client relation please contact us at info@oneillborges.com or your prime contact attorney at O&B.