Opinion
NO. 215-2009-CV-152
08-06-2012
Dartmouth College v. North Branch Construction, Inc. & Lavalle/Brensinger, P.A. AND North Branch Construction, Inc. v. Building Envelope Solutions, Inc. d/b/a Foam Tech
ORDER
The Plaintiff, Dartmouth College, instituted the instant action alleging construction and design defects resulting from a multi-million dollar renovation to its Alumni Gymnasium. The parties have commenced discovery. The Plaintiff filed a Motion to Compel requesting that the Court order the Defendants to produce privilege logs and order Defendant Lavalle/Brensinger, P.A., ("LBPA"), to answer certain interrogatories and document requests. Defendant North Branch Construction ("NBC") filed a response in which it asserts that it does not intend to provide a privilege log because it does not intend to claim a privilege over any documents. LBPA also objects, but has since provided a privilege log and answers to the Plaintiff's remaining interrogatories and document requests. The Court held a conference on July 23, 2012. The issues raised in the Plaintiff's Motion to Compel have been resolved and, thus, its Motion is DENIED AS MOOT.
LBPA has also filed a Motion to Compel requesting that the Court order the Plaintiff Dartmouth to provide documents relative to its retained expert that have been withheld. The Plaintiff objects. For the reasons stated herein, LBPA's Motion to Compel is GRANTED IN PART AND DENIED IN PART.
I
In its Motion to Compel, LBPA seeks production of documents relative to the Plaintiff's retained expert, Simpson, Gumpertz & Heger ("SGH"). Specifically, LBPA seeks four sets of documents: (1) All documents withheld that are in the custody, possession, and control of its retained expert, SGH, identified in Exhibit 2 attached to LBPA's motion; (2) all correspondence withheld that is to and from SGH, or copied to SGH within Dartmouth's custody, possession, and control, identified in LBPA's Exhibit 1 as entries 10, 21, 26, 55, 59, 63, 64, 65, 69, and 93; (3) unredacted copies of handwritten notes drafted by SGH identified in LBPA's Exhibit 2 as entries 74, 75, and 76; and (4) all hand-written notes withheld that reference SGH for which the author is unknown, identified in Exhibit 1 as entries 8, 13, 18, 19, 24, 27, 28, and 29. Defendant LBPA's Mot. to Compel ¶3. LBPA asserts that these documents are discoverable pursuant to RSA 516:29-b, II(b), as it mirrors the pre-2010 version of Federal Rule of Civil Procedure 26(a)(2)(b), and that pursuant to this statute, "all materials, regardless of privilege, that the expert generates, reviews, reflects upon, reads, or uses in formulating his opinions" are discoverable. Id. at ¶4.
The Plaintiff objects and asserts that, although the language in RSA 516:2943, II(b) is the same as the language in pre-2010 FRCP 26(a)(2)(b), the Court should nevertheless construe the statute's language to conform with the version of Rule 26(a)(2)(b) as amended in 2010. The amended Rule 26 provides broader work-product protection for those communications between experts and attorneys, including preliminary and draft reports, that are relied on by experts in formulating their opinions, thus resulting in narrower discovery as compared to the pre-amendment version. Effective December 1, 2010, the Rules Committee restored broad work product protection for most expert materials in order to alter the outcome in cases that have relied on the 1993 formulation of the rule and requiring disclosure of all attorney-expert communications and draft reports. Under this statutory construction, the Plaintiff concludes that all of the documents LBPA requests are not discoverable because they fall under the protection of the work-product doctrine, and thus within the broad protection that RSA 516:294?, II(b) affords when construed similarly to the amended version of FRCP 26(a)(2)(b).
II
In New Hampshire, the work product doctrine protects any document from discovery that is "the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation." Riddle Spring Realty Co. v. State, 107 N.H. 271, 274 (1966). The work product of an attorney generally consists of "his mental impressions, conclusions, opinions or legal theories." Id. at 275 (quotations omitted). "It may consist of correspondence, memoranda, reports, . . . exhibits, trial briefs, drafts or proposed pleadings, plans for presentation of proof, statements, and other matters, obtained by him or at his direction in the preparation of a pending reasonably anticipated case on behalf of a client." Id. (quotations and citations omitted). The real issue in this case is whether information exchanged by a lawyer and an expert is discoverable.
Historically, "[r]eports obtained by a lawyer from his experts [were] almost always considered to be part of his work product," Willett v. General Elec. Co., 113 N.H. 358, 359 (1973). But as a matter of practice, for at least the last 20 years, expert reports have been required to be exchanged in discovery. See, e.g. Superior Court Rule 35 (f). New Hampshire Courts generally relied on FRCP 26 in resolving expert discovery disputes. Johnston by Johnston v. Lynch, 133 N.H. 79, 95 (1990), (the Court relied on FRCP 26 to determine that, under Superior Court Rule 35b(3)(b), which was "essentially the same as" the federal rules of discovery, "the identity of an expert whom the opposing party has retained but does not expect to call as a witness is discoverable without any special showing of exceptional circumstances"). Change in state expert discovery practice paralleled changes in federal practice. The 1993 Amendments to FRCP 26(a)(2)(B) broadly expanded discovery of communications between lawyers and testifying experts. FRCP 26 (a) (2) (B) provided in relevant part that an expert witness must disclose:
(ii) the facts, or data, or other information considered by the witness in forming his testimony. (Emphasis supplied)
The Advisory Committee Note provided with the 1993 version of the rule expressly states:
The report is to disclose the data and other information considered by the expert. . . . Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions— whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.Advisory Comm. Notes to 1993 Amendments to Fed. R. Civ. P. 26.
In interpreting the language "data or other information" contained in the 1993-2010 version of FRCP 26(a)(2)(B), the majority of federal courts apply a "bright line rule . . .: all documents considered by the testifying expert in forming his or her opinion, including attorney work product, are discoverable." Galvin v. Pepe, No. 09-CV-104-PB, 2010 WL 3092640, at *4 (D.N.H. August 5, 2010) (emphasis added); see also Elm Grove Coal Co. v. Dir., Office of Workers' Compensation Programs, 480 F.3d 278, 302 n. 24 (4th Cir. 2007); Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006); In re Pioneer Hi-Bred Int'l, 238 F.3d 1370, 1375 (Fed. Cir. 2001). The bright line rule has not only been adopted by a majority of courts, it is been adopted by every Court of Appeal that has considered the question. South Yuba River Citizen's League v. National Marine Fisheries Service, 257 F.R.D. 607, 612 (E.D. Cal. 2009). "Courts adopting the bright line rule have reasoned that providing privileged material to the expert for him or her to consider in formulating an opinion affects a waiver of the work product privilege, by putting otherwise privileged material at issue in the case." Galvin, 2010 WL 30926240, at *5.
However, in 2011, FRCP 26 (a) (2) (B) was amended to provide that an expert witness must:
(ii) identify facts or data that the parties attorney provided and that the expert considered in forming the opinions to be expressed. (Emphasis supplied)
The purpose of the 2011 amendment was to specifically limit the expansive discovery allowed under the 1993 iteration of FRCP 26. The Advisory Committee Notes state: "the proposed amendments address the problems created by extensive change to rule 26 in 1993, which were interpreted to allow discovery of all communications between counsel and expert witnesses and all draft expert reports and to require reports from all witnesses offering expert testimony."
The majority interpretation of the 1993 version of FRCP 26 is consistent with current New Hampshire state discovery practice. See 4 R. Wiebusch, New Hampshire Civil Practice and Procedure §22.21[5] at 22-25 (2010) ("Except in the case of experts retained for and expected to testify at trial, a party cannot be required to disclose what the attorney or other representative has prepared in the course of work on the case . . ..") (emphasis added).
New Hampshire RSA 516:29-b, enacted in 2004, requires parties to disclose a testifying expert's identity as well as "a written report signed by the witness." RSA 516:29-b, II. Significantly, the language of the statute is identical to the language of the 1993 iteration of FRCP 26. RSA 516:29-b II mandates disclosure of:
"the data or other information considered by the witness in forming the opinions.
When the legislature enacted RSA 516:29-b, the Judiciary Committee noted that the enactment of the statute would "not be a significant change in current practice." NEW HAMPSHIRE JUDICIARY COMMITTEE HEARING REPORT, S. 04-0362 (Feb. 9, 2004) (statement of Attorney Honigberg). Moreover, the statutory language "data or other information" was taken directly from the 1993 version of FRCP 26(a)(2)(B). Fed. R. Civ. P. 26(a)(2)(B) (2007); see id., ("the language is straight from Federal Rule 26") (statement of Attorney Honigberg). Precedent, practice, and the Legislature's reliance on the language of FRCP 26(a)(2)(B) in enacting RSA 516:29-b in 2004, indicates that statutory interpretations of FRCP 26(a)(2)(B), as it read from 1993-2010, are controlling. Thus, application of the majority view interpretation of FRCP 26(a)(2)(B) will ensure that the construction of RSA 516:29-b is consistent with the legislature's intent. The Court notes that at least one other Superior Court justice has reached a similar conclusion. Order, Champney v. EMCOR Energy Services, Inc. No. 216-CV-176 (January 3, 2012) (Gar-funkel, J.).
Dartmouth argues cogently that the 2010 Amendments to FRCP 26 are an improvement in the law and should be applied here. The Committee Notes to Amended FRCP 26 notes that the amendments were "broadly supported by lawyers and Bar associations, including the American Bar Association, the Council of the American Bar Association section on litigation, the American College of trial lawyers, the American Association for Justice (ATLA), The Federal Magistrate Judges Association, the Federation Of Defense And Corporate Counsel, The International Association Of Defense Counsel, and the United States Department of Justice." The 2010 Rule was drafted to expedite litigation, and reduce expense. As the Advisory Committee Notes state:
Experience with the 1993 amendments to Rule 26, requiring discovery of draft expert reports and broad disclosure of any communications between an expert and the retaining lawyer, show that lawyers and experts take elaborate steps to avoid creating a discoverable record and at the same time take elaborate steps to attempt to discover the other side's drafts and communications. These artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide testimony—to avoid creating a discoverable record of the collaborative interaction with the experts. The practices also include tortuous steps to avoid having the expert take any notes, making a record of preliminary analysis or opinions, or producing a draft report. Instead the only record is a single final report. These steps add to the costs and burdens of discovery, impede the efficient and proper use of experts by both sides, needlessly lengthen depositions, detract from cross-examination into the merits of the expert's opinion, make some qualified individuals unwilling to serve as experts, and can reduce the quality of the expert work.
There is much to be said in favor of the new Rule. But, however salutary the changes in Rule 26 are, the Court is not at liberty to interpret a statute inconsistently with the language of a statute; a court "must honor the expressed intent of the legisla- ture as expressed in the statute itself". Premium Research Services v. New Hampshire Department of Labor, 162 N.H. 741, 744.(2011).
III
Dartmouth alternatively argues that, even if RSA 516:29-b is interpreted to be construed as pre-2010 FRCP 26, the statute's application is a violation of Part II, Art. 72-a of the New Hampshire Constitution, which provides that the New Hampshire Court is vested with the exclusive constitutional authority to prescribe judicial procedures, and, as such, the Court may disregard the statute and apply the new federal Rule as an expression of New Hampshire practice. Cf. In re Bayview Crematory, 155 N.H. 781, 784 (2007) (in construing Superior Court Rule 27, the Court will rely on federal cases interpreting the Rule as analytic aids). The Plaintiff primarily relies on certain language in Opinion of the Justices (PSAE), 141 N.H. 562, 573 (1997) for the proposition that the legislature has no power to prescribe procedural rules for the Court. However, Opinion of the Justices (PSAE) cannot be read so broadly. In that case the Court held that a proposed statute which would, in substance, amend NHREv. 404(b) to create a rebuttable presumption that evidence of a prior sexual assault would be presumptively admissible in sexual assault cases, would be unconstitutional. The actual holding of the case was that the legislature may not enact laws which contravene rules established by the court "to assure fundamental due process in civil and criminal trials." Id. at 577. There can be no serious claim that the 1993 iteration of FRCP 26 violates a party's right to the due process of law.
More importantly, in State v. Ploof, 162 N.H. 609, 625 (2011), the Supreme Court noted that "Opinion of the Justices was an advisory opinion issued in response to a request from the Senate, rather than a litigated case, [ and thus] the opinion does not constitute binding precedent." Accordingly, the Court cannot determine that application of RSA 516:29-b is unconstitutional.
Dartmouth argues that given the importance of work product immunity to the judiciary's ability to decide disputes, the Court should, to the extent it disagrees with Dartmouth's arguments concerning the meaning of RSA 516:29, still decline to apply it, citing Superior Court Rule 214 (VIII). The Rule provides that "[t]he presiding justice of the [Business and Commercial Dispute Docket] may establish generally, or in a particular case, procedures consistent with law... in order to achieve prompt resolution of discovery...." Pl. Memo. of Law in Support of Obj. to Motion to Compel ¶ 33. However, the authority of the justice of the Business and Commercial Dispute Docket of the Superior Court to create standing orders to facilitate litigation does not include the authority to make orders which contravene a statute, absent a violation of a party's constitutional rights. It follows then, that any documents or materials that SGH considers or has considered in rendering its opinion are discoverable and shall be provided to LBPA.
IV
Finally, the Court distinguishes certain documents that LBPA identified for the purpose of this motion as not discoverable under RSA 516:29-b. First, the handwritten notes identified in Exhibit 1, entries 8, 13, 18, 19, 24, 27, 28, and 29, remain undiscover-able as there is no indication from the Plaintiff that these notes were given to SGH or that SGH considered them in rendering an opinion. Second, the documents identified on pages 12-13 of the Plaintiff's Objection to the Motion to Compel are not discoverable because, as the Plaintiff points out, these are communications between attorney and client. As a result, they are protected by privilege and are not related to expert disclosures.
In sum, the Plaintiff's Motion to Compel is DENIED AS MOOT; and, consistent with the foregoing opinion, LBPA's Motion to Compel is GRANTED IN PART and DENIED IN PART.
So ORDERED.
______________________
Richard B. McNamara
Presiding Justice