Opinion
97 Civ. 6124 (JGK) (THK), 98 Civ. 3099 (JGK) (THK)
January 4, 2002
MEMORANDUM OPINION AND ORDER
These consolidated actions were referred to me for general pretrial supervision by the Honorable John G. Koeltl, United States District Judge. Presently before the Court is a discovery dispute concerning the potential waiver of privilege with respect to materials provided to Defendants' expert witnesses. Plaintiffs, United States Fidelity Guaranty Co. and American Home Assurance Co. (collectively referred to as "the sureties" or "Plaintiffs"), argue that Defendants Braspetro Oil Services Company and Petroleo Brasileiro S.A. — Petrobras (collectively referred to as "Petrobras/Brasoil" or "Defendants") made all of the documents on their privilege log available to their experts, thereby waiving all privilege with respect to those documents, as well as subjecting those documents to the requirements of expert discovery under Rule 26(a)(2) of the Federal Rules of Civil Procedure. This Court issued an Order, dated June 13, 2001, directing Defendants to identify any privileged documents that were made available to their expert witnesses for consideration in forming their opinions, and to explain why such disclosure, if it did occur, did not waive any claim of privilege with respect to those documents. Defendants have not fully complied with this Order, but nonetheless resist production of such documents on a number of grounds.
For the following reasons, the Court directs that all documents for which Defendants claim a privilege shall be produced to Plaintiffs.
BACKGROUND
On April 27, 2001, Judge Koeltl overruled Plaintiffs' objections to this Court's January 29, 2001 Order upholding Defendants' claims of privilege regarding various documents inadvertently produced to Plaintiffs. With the April 27 Order, the much-litigated question of whether Defendants had waived any privilege with respect to documents for which they claimed a privilege appeared to be finally resolved.
Far from it. On May 21, 2001, Plaintiffs wrote to the Court (Koeltl, J.) asking for reconsideration of the Order in light of the newly discovered fact that one of Defendants' expert witnesses, Frederick C. (Kip) Hamilton, had included two of the privileged documents in the list of materials he had used in preparing his expert report. In fact, Plaintiffs pointed out, Hamilton had summarized one of those documents in the report itself. The Court denied Plaintiffs' application to reconsider its ruling, yet noted that Plaintiffs' letter raised the fully separate issue of whether Defendants had waived any privilege, "not by inadvertent production. . . but by showing [the documents] to a potential witness." (Memorandum ("Mem.") Endorsed Order, May 21, 2001.) Judge Koeltl ordered Plaintiffs to direct their application on this question to this Court, which Plaintiffs did by letter dated May 23, 2001.
After receiving Defendants' response to Plaintiffs' letter (Letter of Peter A. Hornbostel, Esq. ("Hornbostel Letter"), June 1, 2001), this Court ordered Defendants to submit an affidavit setting forth which documents, if any, other than the two documents identified in the parties' correspondence, they made available to their expert(s) for consideration in forming their opinions, and for which they have claimed a privilege. (Mem. Endorsed Order, June 13, 2001.) The Court further ordered Defendants to submit a memorandum of law setting forth their position on why such production, if it did occur, did not waive any privilege asserted. (Id.)
Defendants, as Plaintiffs have since pointed out numerous times, did not squarely respond to this Court's Order. Rather than submit a list of documents "made available" to their experts for consideration, Defendants' counsel affirmed only that their experts had not considered any privileged documents — other than the two documents, plus a third, concededly reviewed by Mr. Hamilton — in forming their opinions. (Declaration of Howard L. Vickery, Esq. ("Vickery Decl."), June 26, 2001.) The declaration does not address the question of what was "made available" to the experts.
On July 6, Mr. Vickery informed the Court that Mr. Hamilton had considered an additional document on Defendants' privilege log. Mr. Vickery stated that Defendants had produced a copy of this document to the sureties and waived their claim of privilege regarding the same. (Vickery Letter, July 6, 2001.)
In their accompanying Memorandum of Law, Defendants argue that Mr. Hamilton's review of three privileged documents did not give rise to a waiver of privilege with respect to any other documents for which Petrobras/Brasoil has claimed a privilege. Defendants claim that Mr. Hamilton, an, accounting expert, used the three privileged documents for background factual information, if at all. (Defendants' Accompanying Memorandum of Law to Vickery Decl. ("Defs. Mem.") at 1-3.) Because of this limited review, Defendants claim that fairness considerations, and the lack of prejudice to the sureties, militate against this Court's finding a waiver of privilege broader than that regarding the three documents themselves (which Defendants concede must be produced). (Id. at 7-8.) Defendants also argue that documents not "reviewed or read" by an expert witness do not fall under the mandatory disclosure requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. (Id. at 3-4.) Like Mr. Vickery's declaration, however, Defendants' memorandum does not identify what documents in particular were provided to but were not "reviewed or read" by the experts. Nor does it specify what type of privilege is claimed for each of these documents, referring throughout simply to "the privilege."
The memorandum implies, at least with respect to the three documents considered by Mr. Hamilton, that the privilege claimed is attorney-client, insofar as these documents contain "references to legal advice provided by outside counsel and, in one case, to a request for legal advice." (Defs. Mem. at 4.) However, the sureties' response notes that one of these documents had been listed on the privilege log as protected by work-product privilege. (Pls. Resp. at 16.) In large part, however, the sureties do not specify the particular privilege to which their arguments pertain.
By letter dated June 27, 2001, the sureties asked the Court to strike Defendants' declaration and memorandum because they stated only what documents were "considered" by Defendants' experts and not, as this Court had ordered, what documents were "made available" to them. On June 29, Defendants responded that Rule 26(a)(2)(B) did not compel disclosure of documents not "considered" by an expert. (Letter of John R. Horan, Esq., June 29, 2001.) In Defendants' words, "[w]hether the expert, or someone on his staff, had access to a document is irrelevant; if the document was not considered by the testifying expert himself that is the end of the inquiry." (Id. at 1.)
On July 3, 2001, the sureties' filed their formal response to Defendants' submissions. (Sureties' Reply to Submission of Petrobras/Brasoil Regarding Waiver of Attorney-Client and Work-Product Privileges by Making Available Privileged Material to Expert Witnesses ("Pls. Resp.").) The sureties' memorandum contains numerous arguments as to why this Court should find a waiver of privilege with respect to all of the materials listed on Defendants' privilege logs. The sureties claim, inter alia, that Defendants' failure to address directly the question of what documents their experts had access to warrants an inference that at least some the experts were given "wholesale access to all of the thousands of Petrobras/Brasoil documents and files, which included all of the allegedly privileged documents." (Id. at 15.) Additionally, the sureties argue that the standard for expert discovery under Rule 26(a)(2)(B), which Defendants cite, is irrelevant to the issue here, which is whether Defendants waived any privilege by submitting privileged documents to third parties (who happen to be expert witnesses). (Id. at 4.) The sureties argue that by making those documents available to their experts, and thus demonstrating a lack of intent to maintain the documents' confidentiality, Defendants waived any attorney-client privilege attaching to those documents. (Id. at 17-18.) The sureties further argue that even if this Court found that only some of the privileged documents were made available to the experts, the privilege still has been lost generally. (Id. at 18-20.) The sureties claim that Defendants' unfair attempt to use some privileged material as a sword, while using the privilege as a shield to protect other, harmful material, prejudices Plaintiffs and results in a wholesale waiver of all asserted privilege.
Between July 3, 2001, and December 26, 2001, the parties sent this Court and Judge Koeltl voluminous supplemental submissions on the present matter. In these submissions, both parties raise new legal arguments, appear to abandon certain other ones, and bring a variety of new factual information to the Court's attention. With respect to any inconsistencies between positions taken in these supplemental submissions and those initially taken in response to the Court's June 13 Order, the Court assumes that the later submissions contain the parties' ultimate positions on the issues at hand. Accordingly, the Court, with one exception, will consider all of these submissions, summarized below, in ruling on the instant matter.
The Court will not consider Defendants' December 21 letter, which sets forth an argument never previously raised. Defendants offer no good reason why this argument, which is based on a supposed agreement between the parties on June 14, 2001, was not made in Defendants' several submissions last summer — or even in their December 14, 2001 letter.
Following the depositions of Mr. Hamilton and Scott C. McClure, another of Defendants' experts, the sureties wrote to the Court asserting that Mr. Hamilton's testimony revealed scant awareness on his part of what privileged documents he or his staff had reviewed. (Letter of Brian P. Flaherty, Esq., July 26, 2001, at 2-4.) Further, the sureties' letter refers to 60 electronic discs ("discs" or "CD-ROMs"), allegedly containing privileged material, that both experts testified were made available to them. (Id. at 3.) The discs contain scanned images of 1.1 million documents related to the instant litigation. (Vickery Letter, Dec. 14, 2001, at 6.)
At the direction of the Court, the sureties produced the deposition transcripts of Mr. Hamilton and Mr. McClure, along with a cover letter indicating what portions of the transcripts contained testimony regarding materials furnished for the experts' consideration. (Letter of Jacob C. Cohn, Esq., Dec. 11, 2001.) The sureties also produced relevant excerpts from the transcript of Steinar Draegebo, another Petrobras/Brasoil expert. Each of the experts testified that he was given or had access to more than 50 electronic discs containing documents and data, some of which were relevant to their respective expert reports. Mr. Hamilton testified that he was given "somewhere over 50" discs in connection with his engagement as an expert witness. (Deposition Transcript of Kip Hamilton ("Hamilton Dep. Tr.") at 197.) Mr. Hamilton stated that he made these discs available to his staff, who would retrieve specific documents requested by him as well as conduct searches of the discs for other relevant material. (Id. at 364.) Mr. McClure also testified that he had been given "maybe 60" discs, which were searchable and from which he could retrieve documents. (Deposition Transcript of Scott C. McClure ("McClure Dep. Tr.") at 348-49.) Mr. Draegebo testified that at his request, Mr. McClure provided him with documents and hard copies of computer files in Mr. McClure's office. (Deposition Transcript of Steinar Draegebo ("Draegebo Dep. Tr.") at 41-43.)
Defendants continue to resist production of all documents supplied to their experts but not actually reviewed by them. Defendants assert that for the purposes of Rule 26(a)(2)(B), documents "considered" by the expert include only "materials which the expert witness reviewed or read (even if he ultimately rejected them), and any notes or materials prepared by the expert's staff that the expert saw or discussed with his staff. Documents that the expert did not see, reflect on, and/or discuss before forming his opinions, were not produced." (Vickery Letter, Aug. 1, 2001, at 3.) As for the CD-ROMs, which Defendants do not dispute were provided to Messrs. McClure and Hamilton, Defendants argue that they should not have to produce these to Plaintiffs because Mr. Hamilton used only hard copies of documents; because much of the material on these discs was never considered by either Mr. Hamilton or Mr. McClure; and because it would be unfair to allow the sureties to have the discs because they were expensive and time-consuming to produce. (Id. at 2-3; Vickery Letter, Dec. 14, 2001, at 5-7.)
Plaintiffs argue that Petrobras/Brasoil waived their claims of privilege by furnishing to their testifying experts the privileged documents — whether in paper or electronic form — thereby abandoning any intention to maintain their confidentiality. (Flaherty Letter, Dec. 20, 2001, at 3.) Plaintiffs also argue that as a matter of expert discovery, they are entitled to the electronic database furnished to Defendants' testifying experts. Plaintiffs contend that Federal Rule of Civil Procedure 26(a)(2)(B) mandates production of all material supplied to an expert, whether or not actually reviewed, much less relied on, by the expert in forming his opinion. (Id. at 5-6.) Plaintiffs further argue that even if their view of the law were wrong, and Rule 26(a)(2)(B) did not require disclosure of material merely "furnished" to an expert, the experts in this case nevertheless actually "considered" the database by searching it and reading from it. (Id. at 6-7.)
Finally, Defendants argue that although members of Mr. Hamilton's and Mr. McClure's respective staffs may have reviewed privileged documents, they did not do so in assisting Messrs. McClure and Hamilton in the preparation of their respective reports as testifying experts. (Vickery Letter Dec. 14, 2001, at 3-4.) Rather, the staff members allegedly reviewed these documents to assist Defendants' counsel in understanding the complex accounting and engineering issues in this case; thus, Defendants argue, the disclosure of privileged information to these "consulting experts" (as opposed to testifying experts) does not waive the privilege.
The sureties challenge Defendants' assertion of privilege on these grounds. (Flaherty Letter, Dec. 20, 2001, at 3-5.) The sureties argue,inter alia that the same privileged material made available to the alleged consulting experts was made available to the testifying experts, and that, even if different materials were furnished to each, Petrobras/Brasoil has not clearly demonstrated which materials were furnished to the alleged consulting experts for consultative purposes and which were furnished for the preparation of expert testimony. Any ambiguity on this score, Plaintiffs contend, should be resolved in favor of the party seeking discovery.
DISCUSSION
As an initial matter, the Court notes that Defendants have been more than a little careless, if not cavalier, about supplying this Court with information it would need to properly consider the question before it. In defending their claims of privilege against Plaintiffs' assertion of waiver, it was incumbent on Defendants to identify the precise scope of the disclosure of documents to the experts, including any limitations placed on their use, as well as the type of privilege asserted for those documents. Beyond simply being a matter of common sense, providing this information was necessary for compliance with this Court's June 13 Order.
Similar carelessness prompted the earlier, hotly contested dispute in this litigation about whether Defendants had waived privilege by producing privileged documents to Plaintiffs. The Court then afforded Defendants the benefit of the doubt in concluding that the production had been inadvertent. See U.S. Fidelity Guaranty Co. v. Braspetro Oil Servs. Co., No. 97 Civ. 6124 (JGK) (THK), 2000 WL 744369, at *4 (S.D.N.Y. June 8, 2000).
In numerous submissions to this Court, Defendants have not once identified any particular documents, other than those they concede they must turn over, for which a privilege is being claimed. Nor have Defendants provided the Court any meaningful guidance as to the contents of the CD-ROMs, whose production to Plaintiffs they nevertheless so vigorously contest. In fact, the only items Defendants specifically refer to in their submissions are the four documents for which they concede the privilege has been waived. Other than the CD-ROMs, which the Court learned about from Plaintiffs, the Court has never been informed of what materials Petrobras/Brasoil "made available to its expert(s) for consideration in forming their opinions, and for which they have claimed a privilege." (Mem. Endorsed Order, June 13, 2001.) Additionally, Defendants nowhere identify the particular privilege being claimed with respect to any of the materials being withheld. In effect, Defendants' submissions amount to a request that this Court uphold "the privilege" with respect to "some documents and materials."
Under these circumstances, the Court will operate on the assumption — which Plaintiffs ask it to adopt (Pls. Resp. at 20; Flaherty Letter, Dec. 20, 2001, at 1) and which Defendants have never squarely denied — that all of the documents on their privilege log were made available to at least Mr. Hamilton and Mr. McClure.
I. Attorney-Client Privilege
It is well established that voluntary disclosure of a document to a party outside the privilege waives the attorney-client privilege regarding that document. See. e.g., In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); Aramony v. United Way of Am., 969 F. Supp. 226, 235 (S.D.N.Y. 1997); In re Kidder Peabody Secs. Litig., 168 F.R.D. 459, 468 (S.D.N.Y. 1996). This is because such disclosure undercuts the very reason for the privilege, which is to protect the confidentiality of communications between clients and their attorneys. See E.C.D.C. Envtl., L.C. v. New York Marine and Gen. Ins. Co., No. 96 Civ. 6033 (HBP), 1998 WL 614478, at *4 (S.D.N.Y. June 4, 1998) (citing In re von Bulow, 828 F.2d at 102-03);Carter v. Rosenberg Estis, P.C., No. 95 Civ. 10439 (DLC), 1996 WL 695866, at *1 (S.D.N.Y. Dec. 4, 1996). Disclosure of materials to a testifying expert in connection with his testimony, which "assumes that privileged or protected material will be made public," thus effects a waiver to the same extent as any other disclosure. In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375-76 (Fed. Cir. 2001); cf. U.S. Postal Serv. v. Phelps Dodge Refining Co., 852 F. Supp. 156, 161 (E.D.N.Y. 1994) (noting that in limited circumstances, privilege may be extended to communications made to third parties who are agents of the attorney, "such as accountants; administrative practitioners not admitted to the bar; and non-testifying experts") (emphasis added).
Here, the record shows that Defendants made available the full contents of some 60 CD-ROMs to at least Mr. Hamilton and Mr. McClure. Mr. Hamilton also testified explicitly that not only he, but his staff, could review the discs' contents at their discretion in search of relevant material. (Hamilton Dep. Tr. at 197-98, 364-65.) Mr. McClure, although stating that he "did not just randomly . . . open files," nonetheless testified that he could search the contents of all 60 discs. (McClure Dep. Tr. at 349) Under these circumstances, the Court can only conclude that Defendants voluntarily relinquished whatever confidentiality attached to the contents of those discs, and thereby waived the attorney-client privilege with respect to everything on the discs. Similarly, the privilege has been waived for any hard copies of privileged documents that were provided to the experts.
As noted, Defendants, though not denying that a number of documents were furnished to their experts but not "considered" by them, have never identified these documents despite being ordered by the Court to do so.
Defendants have also argued, albeit rather belatedly, that their production of documents and electronic materials to the firms of Messrs. McClure and Hamilton was in part related to the firms' work as consulting, rather than testifying, experts. Relying on, among other things, United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), Defendants argue that privileged communications disclosed to these consulting experts did not waive the privilege, because they "were acting as agents of the attorney in connection with the representation of the client in a legal proceeding." (Vickery Letter, Dec. 14, 2001, at 4.)
Only in their December 14 letter — six months after being ordered by this Court to defend their assertions of privilege-did Defendants first raise this argument. Because of this lateness, Plaintiffs urge the Court to rule that this argument has been waived. Though tempted to do so, the Court will rule instead on the merits, which lead to the same result.
While Defendants are correct that the law governing privilege distinguishes, in certain instances, between information disclosed to testifying experts and nontestifying experts, the law is again unavailing to Defendants under the circumstances of this case. Even in claiming that certain documents were reviewed exclusively for consultative purposes, Defendants do not identify which documents were so reviewed. Again, Defendants had a duty to inform this Court what materials they supplied to their experts before offering their view as to why the privilege nonetheless still obtained. Despite purportedly "relying on the . . . distinction between consulting experts and testifying experts," (Vickery Letter of Dec. 14, 2001, at 4), Defendants do not offer any concrete explanation — much less a citation to competent evidence — as to how this distinction in fact applies to the documents produced to the experts here. There is no evidence supporting Defendants' bare assertion that certain documents were reviewed by the experts solely in a consultative capacity. Rather, the record indicates that at least two of Defendants' experts, and their staffs, had access to the entire universe of Defendants' documents for use in connection with the experts' reports and testimony. Nor is there any evidence that Defendants tried to limit access to the database according to the purpose for which it was being used, much less that any documents for which the privilege is being claimed were considered only for consultative purposes.
Accordingly, for the reasons stated above, the Court finds that Defendants waived the attorney-client privilege for all of their documents.
II. Work Product Material
As noted above, Defendants have inexcusably failed to indicate what privilege they are asserting with respect to any of the materials in issue. Moreover, they have failed to make any distinction in their legal argument between waiver of the attorney-client privilege and of the protection for work product. This omission has placed the Court in the position of having to rule hypothetically on what it surmises Defendants might be claiming.
However, for the sake of completeness, the Court will assume that at least some of the privileged documents being withheld would, absent a waiver, be protected by the work product doctrine, and will rule accordingly.
While disclosure to a third party generally waives the attorney-client privilege, such disclosure does not waive the protection afforded to work product unless it substantially increases the likelihood that the work product will fall into the hands of the adversary. See Verschoth v. Time Warner. Inc., No. 00 Civ. 1339 (AGS), 2001 WL 546630, at *3 (S.D.N.Y. May 22, 2001); Stroucro v. B.E.A. Assocs., 199 F.R.D. 515, 522 (S.D.N.Y. 2001). However, a majority of courts that have considered the issue have held that even the work product doctrine must give way to the requirements of expert discovery. See e.g., MIC Communications Corp. v. Dataline, Inc., No. 01 Civ. 3849 (LAP) (DFE), 2001 WL 1335291, at *1 (Oct. 30, 2001) (holding that the opposite conclusion has been "refuted," and collecting cases); B.C.F. Oil Refining, Inc. v. Consol. Edison Co. of New York, 171 F.R.D. 57, 65-67 (S.D.N.Y. 1997). In other words, even privileged material must be produced when it falls within the scope of Rule 26(a)(2), which requires experts to file a report containing,inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor; [and] the data or other informationconsidered by the witness in forming the opinions." Fed.R.Civ.P. 26 (a)(2)(B) (emphasis added).
That much the parties do not dispute. What they do contest is the meaning of the term "considered" under the rule. That is, Plaintiffs contend that all material supplied to an expert, whether or not the expert reviewed or even looked it at, much less relied on it in forming his opinion, constitutes material "considered" by the expert. Defendants assert that "considered" extends only to material actually read or otherwise examined, even if ultimately rejected. Defendants therefore resist discovery of material produced to the experts but not looked at by them, such as unopened boxes of documents and areas of the electronic database never reviewed by the experts.
The caselaw interpreting Rule 26(a)(2), and the Advisory Committee Notes thereto, contain mixed signals as to how broadly to interpret the rule's disclosure requirements. Compare, e.g., In re Pioneer Hi-Bred, 238 F.3d at 1375 ("fundamental fairness requires disclosure of all information supplied to a testifying expert in connection with his testimony") (emphasis added), and Fed.R.Civ.P. 26(a)(2) Advisory Committee's Note to the 1993 Amendment ("[L]itigants 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 on by the expert — are privileged or otherwise protected from disclosure.") (emphasis added), with, e.g., Amway Corp. v. Procter Gamble Co., No. 98 Civ. 726, 2001 U.S. Dist. LEXIS 5317, at **3-4 (W.D. Mich. Apr. 17, 2001) (holding that documents supplied to but not read, reviewed, or considered by the expert need not be produced). However, the Court need not resolve this issue, because Defendants have failed to make the requisite showing even under the standard they urge this Court to adopt. That is, although a few cases suggest that an expert must actually read or review a document to trigger the disclosure requirements of Rule 26(a)(2), those cases make clear that the burden of showing that the expert did not read or review a document lies with the party resisting discovery. In theAmway case cited by Defendants, although the Court found disclosure under Rule 26 unnecessary, the party asserting the privilege had presented the court with affidavits and deposition testimony "clearly establishing" that the testifying expert witness never read, reviewed, or considered the subject documents in forming his opinions. See Amway, 2001 U.S. Dist. LEXIS 5317, at **3-4 Conversely, in Musselman v. Phillips, 176 F.R.D. 194, 202 (D. Md. 1997), the court ordered production of documents submitted to the expert where the party claiming the privilege did not offer any evidence that the expert did not in fact review the materials in forming his opinion. See id. at 202 ("Of course, it is the burden of the party asserting work product immunity to demonstrate that the materials were not furnished to their expert to be used in forming their opinion, or that the expert did not consider the materials in forming the opinion."); see also Lamonds v. Gen. Motors Corp., 180 F.R.D. 302, 306 (W.D. Va. 1998) (finding that experts had "considered" documents where "[t]here is no evidence that the experts received, but did not read, reflect on, or think about the memorandum").
In this case, Defendants have offered no competent evidence that any particular documents supplied to their experts were not read or reviewed by them. Rather, Defendants' counsel simply make a general assertion that their experts did not review everything that was supplied to them, whether in electronic or hard-copy form. Under the circumstances, Defendants have failed to show that any materials supplied to their experts were not also "considered" by them.
Moreover, the evidence shows that at least two of Defendants' experts, and their staffs, had access to the entire universe of materials on the discs for use in connection with the experts' reports and testimony. Even if, as Defendants' counsel asserts, the experts did not consider most of the documents in the boxes or on the discs provided to them, the experts testified that their staffs had access to, and searching capability of, the discs in their entirety.
Defendants further argue, citing B.C.F. Oil Refining, 171 F.R.D. at 60, that even if the experts or their staffs did review certain privileged documents (which, again, are not specified), they did so in their capacity as consultants, and thus did not consider these documents "in forming [their] opinions." Fed.R.Civ.P. 26(a)(2)(B). This argument also fails.
Defendants are correct that in B.C.F. Oil Refining, the court did not require production of documents "which though coming from the . . . expert (or sent to him) have nothing to do with the preparation of his expert report or his expert testimony." 171 F.R.D. at 60. However, unlike in the instant case, the court was able to identify such documents with particularity. See id. at 61-62. Further, Defendants fail to point out the court's full holding, which is that "documents having no relation to the expert's role as an expert need not be produced but that 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 62. Thus, even though the plaintiff insisted that the vast majority of documents its expert considered related only to his role as "technical consultant," the court ordered production of all but the few for which this assertion had been "clearly established." Id. As the court stated, in words equally applicable to this case, "[a] 11 other documents . . . which plaintiff claims have nothing to do with the expert's testimony, cannot be withheld . . . since it is not clear whether the expert reviewed them solely as a consultant or whether they informed his expert opinion as well." Id. In another passage highly instructive to the instant case, the court stated that the party seeking discovery "should not have to rely on [the other party's] representation that these documents were not considered by the expert in forming his opinion." Id.
As noted earlier in this decision, there is no evidence supporting Defendants' bare assertion that certain documents were reviewed by the experts solely in a consultative capacity. Moreover, there is no indication in the record that Defendants tried to limit the experts' access to the database according to the purpose for which it was being used, or that any documents for which the privilege is being claimed were considered only for consultative purposes. In the absence of any such indication, the Court finds that Defendants have not shown, much less "clearly established," that their experts did not consider everything supplied to them in forming their opinions as testifying experts.
Finally, Defendants argue that even if this Court does find that they have waived any privilege with respect to the documents produced to their experts (electronically or otherwise), Plaintiffs are not entitled to the index and OCR (optical character recognition) created in connection with the electronic database. Defendants assert that their experts did not substantively "consider" these searching aids in forming their expert opinions. (Vickery Letter, Dec. 7, 2001, at 2.)
Defendants do not claim that the index and OCR are protected by privilege; nor do they cite any law in support of their claim that such searching aids should be treated separately from other materials supplied to an expert. Because even attorney work product considered by an expert must be produced when it falls within the scope of Rule 26(a)(2), the Court sees no reason to afford additional protection to the materials at issue here. Accordingly, the Court orders that any indexes and search aids supplied on or with the CD-ROMS must also be produced.
CONCLUSION
For the foregoing reasons, Defendants are hereby ordered to produce to Plaintiffs all materials provided to their experts that have not already been produced. As explained, this Order extends to everything on Defendants' privilege logs, and includes all documents, privileged or unprivileged, furnished in hard-copy or electronic form, as well as all indexes and search tools (such as OCR) furnished therewith.
SO ORDERED.