Communications with Unretained Experts, Unprotected by Rule 26(b)(B)(4)(C), Are Protected by Attorney-Client Privilege — Any Exceptions? — Affiants on Preliminary Injunction = Testifying Experts

Graco, Inc. v. PMC Global, Inc., 2011 WL 666056 (D.N.J. Feb. 14, 2011):

In connection with Graco’s motion for a preliminary injunction *** and opposition to PMC’s motion for summary judgment ***, Graco submitted [numerous] affidavits.... The Court notes that Weinberger, Mulder, Farrow, and Pagano are Graco employees (collectively, “Employee Opinion Witnesses”). On June 21, 2010, PMC noticed the depositions of Weinberger and Pagano and concurrently served requests for documents to be produced at the depositions, including all documents considered or relied upon in drafting the above-referenced affidavits, all drafts of the affidavits, and all communications with those individuals concerning their affidavits. Graco objected to these document requests, asserting that the declarants should be treated as non-experts and maintains that the material requested is protected by the attorney-client privilege or work-product privilege. ***

In general, “in addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705”. FED.R.CIV.P. 26(a)(2) (A).... The parties’ expert disclosure “must be accompanied by a written report” that contains, among other things, “the data or other information considered by the witness”, if the witness is “one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony”. FED.R.CIV.P. 26(a)(2)(B). Importantly, pursuant to updated FED.R.CIV.P. 26(a)(2)(B), effective December 1, 2010, the written report requirement includes, among other things, only “the facts or data considered by the witness in forming [opinions]”. Similarly, pursuant to updated FED.R.CIV.P. 26(a)(2)(C), effective December 1, 2010, “if the [expert] witness is not required to provide a written report, [his/her] disclosure must state: (i) the subject matter on which the witness is expected to present evidence ...; and (ii) a summary of the facts and opinions to which the witness is expected to testify”. See also Navajo Nation v. Norris, 189 F.R.D. 610 (E.D.Wa.1999). ***

Importantly, pursuant to updated FED.R.CIV.P. 26(b)(4)(B), effective December 1, 2010, “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”. Similarly, pursuant to updated FED.R.CIV.P. 26(b)(4)(C), effective December 1, 2010, “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 work product doctrine is governed by a uniform federal standard set forth in FED.R.CIV.P. 26(b)(3) and ‘shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.’ “ In re Cendant Corp. Securities Litig., 343 F.3d 658, 661-62 (3d Cir.2003) (quoting United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). The Supreme Court articulated the essential nature of the doctrine in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947): “In performing his various duties, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel....This work is reflected, of course, in interviews, statements, memoranda, correspondences, briefs, mental impressions, personal belief, and countless other tangible and intangible ways.” ***

The Court finds that, based upon Graco’s affirmative reliance on the facts and opinions set forth in their respective affidavits submitted in support of, and opposition to, dispositive motion practice, the Employee Opinion Witnesses, Mainey and Rice should be considered “testifying witnesses”. See Plymovent Corp. v. Air Technology Solutions, Inc., 243 F.R.D. 139, 143 (D.N.J.2007); see also Atari Corp. v. Sega of America, 161 F.R.D. 417, 418-20 (N.D.Cal.1994); United States v. Hooker Chemicals & Plastics Corp., 112 F.R.D. 333, 339 (W.D.N.Y.1986). Therefore, with respect to the Employee Opinion Witnesses, the Court finds:

(1) PMC is not entitled to a written report for the Employee Opinion Witnesses pursuant to current, and amended, Rule 26(a)(2) and the 2010 Advisory Committee Note;

(2) PMC is entitled to a disclosure stating the subject matter and a summary of the facts and opinions proffered by the Employee Opinion Witnesses pursuant to amended Rule 26(a)(2)(C) and the 2010 Advisory Committee Note and supplements thereto pursuant to amended Rule 26(a)(2)(E);

(3) PMC is not entitled to any drafts, regardless of form, of expert reports, affidavits, or disclosures pursuant to amended Rule 26(b)(4)(B) and 2010 the 2010 Advisory Committee Note;

(4) PMC is entitled to all relevant discovery regarding the facts/data considered, reviewed or relied upon for the development, foundation, or basis of their affidavits/declarations (e.g. testing of material involved in litigation, notes of any such testing, communications with anyone other than Graco’s counsel about the opinions expressed, alternative analyses, testing methods, or approaches to the issues proffered, whether or not considered in forming the opinions expressed) pursuant to amended Rules 26(b)(4) (B) and (C) and the 2010 Advisory Committee Note [Editorial Note: 26(b)(4)(C) does not apply to unretained experts ];

(5) Communications between Graco’s counsel and the Employee Opinion Witnesses are protected by the attorney-client privilege (see United Jersey Bank v. Wolosoff, 196 N.J.Super. 553, 561-62, 483 A.2d 821 (App.Div.1984)) ;

Editorial Note: Given that (i) Rule 26(b)(4)(C) doesn’t apply to unretained experts, and (2) there may be, as here, an attorney-client privilege applicable to communications between counsel and an unretained employee opinion witness, do or should the substance of any of the exceptions in 26(b)(4)(C) be applied to such witnesses on the theory that there is some implied or other waiver in giving facts or assumptions to an unretained employee expert whom one proffers to testify?

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