Commercial Litigation and Arbitration

When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Paradigm Biodevices, Inc. -v- Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312 (S.D.N.Y. Jan. 17, 2013):

By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to produce a draft report prepared by Zolfo Cooper (the "Report"), an entity appointed by an English court as liquidator of Surgicraft, and other communications with Zolfo Cooper. (Docket No. 122). Defendants indicated that Plaintiff was withholding the materials on the ground that Plaintiff had retained Zolfo Cooper as an expert for this litigation and that Zolfo Cooper had produced the Report in that capacity. Defendants contended that in determining whether documents should be produced when a person or entity acts in a dual capacity as an expert and non-expert, however, "any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery." (Id. at 2 (quoting B.C.F. Oil Ref v. Consolidated Edison Co., 171 F.R.D. 57, 62 (S.D.N.Y. 1997)).

In its responsive letter, dated January 11, 2013, Plaintiff did not take issue with this standard. Instead, it maintained that "[t]here is no ambiguity in Zolfo Cooper's role in connection with the draft report. Zolfo Cooper has been retained as an expert by Paradigm in this case, the draft report was generated in connection with that engagement, and, therefore, the draft report is subject to the protection of Fed. R. Civ. P. 26(b)(4)(C) and should not be ordered produced." (Docket No. 123). By endorsement, the Court directed Plaintiff to submit the Report for the Court's in camera review. (Id.). On January 17, 2013, the Court received the Report, which will be maintained under seal for purposes of the record in this case.

Having reviewed the Report in camera, the Court hereby orders that it must be produced to Defendants no later than January 23, 2013. There are various indications in the Report that Zolfo Cooper produced the Report in its capacity as liquidator***.

By contrast, Plaintiff has pointed to no statement, let alone clear statement, that the Report was produced in Zolfo Cooper's capacity as an expert retained for purposes of this litigation; indeed, the Report does not appear to mention that fact at all. At a minimum, there is "ambiguity as to the role played" by Zolfo Cooper, which calls for disclosure. B.C.F. Oil Ref., 171 F.R.D. at 62.

For the foregoing reasons, the Court concludes that there is no basis to withhold the draft report pursuant to Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure and directs that Plaintiff disclose it to Defendants no later than January 23, 2013. The parties are directed to confer with respect to any other communications with Zolfo Cooper in light of this ruling. If, after the parties confer, there are any further disputes with respect to disclosure, Plaintiff shall promptly submit the relevant material to the Court for its in camera review.

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