13 August 2026 • 3 minute read
Puerto Rico enacts law providing work-product protection for certain expert communications and draft reports
Puerto Rico Act 172-2026 was approved on August 6, 2026 to provide work-product protection for certain attorney-expert communications and draft expert reports, subject to specified exceptions.
The law responds to the decision of the Puerto Rico Supreme Court in McNeil Healthcare, LLC v. Municipio de Las Piedras, et al. (II), 206 DPR 659 (2021), which held that, under then-current Puerto Rico law, drafts of a testifying expert’s report and communications between the expert and retaining counsel concerning the report are discoverable and not protected by the work product doctrine absent an express statutory or rule-based protection. In particular, the Court concluded that Puerto Rico Rule of Civil Procedure 23.1(c) did not categorically protect drafts of expert reports or attorney-expert communications relating to those reports.
Puerto Rico Act 172-2026 amends Puerto Rico Rule of Civil Procedure 23.1(c), the rule on scope and limitations of expert discovery, to state that the draft reports prepared by experts and the communications between the experts and the party’s attorneys are protected under the work product doctrine. As such, they are generally not discoverable, regardless of the form or medium in which they are prepared or preserved.
The amended rule includes as an exception that a court may order the discovery of draft reports and communications with experts if they:
- Relate to compensation that the expert will be paid for the analysis or testimony; or
- Identify facts, data, or assumptions provided by the attorney to the expert to consider as a basis for the expert opinion.
The amendment aligns Puerto Rico Rule of Civil Procedure 23.1(c) with Federal Rule of Civil Procedure 26(b)(4), which states:
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
The amended rule maintains the language recognizing that the other party may request the name and contact information of the testifying expert who will be presented at trial, as well as the topics of the testimony and a summary of the expert opinion, and theories, facts, and arguments in support.
Under the McNeil Healthcare decision, expert preparation in litigation in Puerto Rico had to be managed with the expectation that opposing counsel could explore how the expert report evolved and whether attorney input affected the final opinion. The amendment may reduce discovery into the evolution of draft expert reports and certain attorney-expert communications. The Statement of Motives of Puerto Rico Act 172-2026, which enacts Senate Bill 51 of 2026, identifies confidentiality of these documents as essential for an effective defense.
Parties may wish to consult counsel when retaining and managing experts to assess how to protect communications under the work product doctrine.
For questions or more information, please contact the author or your usual DLA Piper attorney.