Early Reports from Expert That Are Not Drafts of 26(a)(2)(B) Report Are Not Protected from Discovery — Interrogatories Seeking Expert Information Prior to Expert Disclosure Date Set by Court Are Premature

Amco Ins. Co. v. Mark’s Custom Signs, Inc., 2013 U.S. Dist. LEXIS 53803 (D. Kan. April 16, 2013):

This is an insurance subrogation claim brought by Plaintiff against the named Defendants resulting from a fire occurring on April 3, 2009, in a building insured by Plaintiff. (Doc. 31, at 2.) Following payment by Plaintiff, its insured "assigned all its rights, title and interest in its causes of action arising from the subject fire and damages to Plaintiff." (Id.) Plaintiff has brought various subrogation causes of action against the named Defendants, alleging that the fire was "caused by the breach of contracts, carelessness, negligence, recklessness and fault of Defendants . . . ." (Id., at 4.)

At 4:30 a.m. on April 3, 2009, a fire damaged the Plaintiff's insured's property. Plaintiff's in-house Investigator, Mr. Lee, was contacted by the claims representative at about 11:30 a.m. the same day. As is standard practice for any claim involving a large fire loss, Mr. Lee retained the services of an independent fire origin and cause investigator. At about 11:39 a.m., Mr. Lee learned from the Kansas State Fire Marshall that the insured had a previous fire involving the neon lights. After that Mr. Lee learned that the Defendant Mark's Custom Signs had completed some repairs to the lights near where the new fire originated.

Based on this information, because he suspected that Defendant Mark's Sign Company may have responsibility, Mr. Lee retained the services of an electrical engineer expert. Mr. Lee states that he did so because there was now evidence that a third party may have contributed to this loss and he wanted to be prepared for anticipated litigation, although such was not one-hundred certain to exist.

On April 4, 2009, one of the experts (Plaintiffs do not specify which) contacted Mr. Lee and informed Mr. Less of his preliminary findings, including the opinion that a third party contributed to the fire. Mr. Lee stopped the investigation, and on April 10, 2009, mailed a letter inviting the parties suspected at that time of contributing to the fire, to inspect the scene, which they did on April 24, 2009. Those parties are the Defendants in this litigation.

At issue is one Request for Production propounded by Defendant Mark's Custom Signs, Inc. (hereinafter "Defendant"), seeking documents "regarding the investigation of the accident, your insured's alleged damages, documentation regarding payments made to your insured for its alleged damages, as well as any and all reports or notes made by any investigator, adjuster, agent or representative regarding your insured's claim." (Doc. 99-9, at 2.) While producing certain documents, and "without waiving" its objections, Plaintiff responded that the request "seeks information that is protected by the work product doctrine." (Id.)***

Work product claims regarding two types of retained experts are governed by Fed. R. Civ. P. 26(b)(4). The first type is an expert from whom a report is required. This is an expert who is identified as a witness a party "may use at trial" to provide evidence under Fed.R.Evid. 702, 703 or 705 (governing expert testimony) and who is retained or specially employed to provide expert testimony in the case, or whose duties as the party's employee regularly involves giving expert testimony. Fed.R.Civ.P. 26(a)(2)(A), (B). The second type of expert is one retained or specially employed in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial. Fed. R. Civ. Proc. 26((b)(4)(D).

Work product claims concerning consultants not in one of these two categories are evaluated under the general work product provision in Fed. R. Civ. P. 26(b)(3). When experts are designated as witnesses, the general work product protection is waived, except as provided by Rule 26(b)(4).

B. Timing of Production of Discovery

The Plaintiff's principal argument is that the discovery requests relating to information from experts is premature. Although the Court does not agree that Rule 26(b)(4)(A) requires discovery concerning testifying experts, other than depositions, must await the formal identification of the experts, there are good practical reasons for imposing that limitation. See Northern Natural Gas Company v. Approx. 9117.53 Acres, No. 10-1232-MLB-DWB, 2013 WL 251019 (D. Kan. Jan. 23, 2013). In its memorandum, the Plaintiff explains that although it expects to designate these experts for testimony, it may not. If either of these experts is not expected to testify at trial, and thus becomes only a "consulting expert," some of these materials may be protected from discovery under Rules 26(b)(4)(D) or 26(b)(3). Plaintiff's expert disclosures are due May 31, 2013. Under these facts, the Court agrees that it would be premature to resolve the present issues before the experts are designated. ***

C. Additional Guidance

The parties have provided facts and arguments which illustrate some disagreement concerning the evaluation of the privilege issues which may be raised in the supplemental production. With the goal of avoiding additional problems, the Court offers the following guidance.

For any expert witness designated as a witness under Rule 26(a)(2)(A), the general work product privilege in Rule 26(b)(3) is waived except as provided in Rule 26(b)(4)(B) and (C), which provides specific work product protection for experts required to provide reports. This waiver applies regardless of the capacity of the expert at the time of document was created. Rule 26(b)(4)(B) protects only drafts of required Rule 26(a) reports or disclosures. The Court does not agree that such protection extends to other types of reports, preliminary or not, by the expert, or to communications to Plaintiff's agents.

Footnote 2 Plaintiff cites Greenwood 950, LLC v. Chesapeake La., LP, 2011 WL 1234735 (W.D. La. Apr. 1, 2011) in support of a claim that this provision protects other early reports by experts. However, the court appears to limit that finding to the facts of that case. To the extent the case stands for a general protection of reports other than Rule 26(a) report drafts, this Court disagrees.

Rule 26(b)(4)(C) protects only communications between the expert and the Plaintiff's attorney. Because the Rule protects only communications with Plaintiff's attorney, notes by Plaintiff's non-attorney agents regarding communications with a testifying expert are not protected. Based on the information provided in Plaintiff's memorandum and privilege log, none of the work product objections interposed will be valid as to a designated testifying expert.

If one or more expert is not designated as a witness, the supplemental privilege log claiming any work product privilege must, to comply with Rule 26(b)(5), include enough information to enable the Defendant to evaluate any work product claim under Rule 26(b)(3) (documents prepared by party or consultants in anticipation of litigation) or Rule 26(b)(4)(D) (facts known or opinions held by non-testifying experts retained for trial preparation or in anticipation of litigation). Plaintiff is cautioned that a finding that litigation was anticipated by a particular date is not the same as establishing that a particular document was prepared in anticipation of such litigation under Rule 26(b)(3)(A).

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