Opinion
Case No. 1:98cv 726
April 17, 2001
ORDER
In accordance with the memorandum opinion issued this date:
IT IS ORDERED that plaintiff's motion to compel production of documents provided by Procter Gamble to testifying expert witnesses (docket # 477) be and hereby is DENIED.
MEMORANDUM OPINION
This matter is before the court on plaintiff's motion to compel production of four documents allegedly reviewed by two expert witnesses for defendant Procter Gamble (docket # 477). Plaintiff relies upon the provisions of Fed.R.Civ.P. 26(a)(2)(B), which require testifying expert witnesses to provide a report including, among other things, "the data or other information considered by the witness in forming the opinions." In other contexts during the course of this litigation, I have expressed my agreement with those courts holding that Rule 26(a)(2) requires disclosure of any document considered by a testifying expert, whether or not the document is otherwise privileged and regardless of whether the expert expressly relies upon the document in formulating his or her opinion. See, e.g., Simon Property Group L. v. mySimon, Inc., 194 F.R.D. 644, 646-47 (S.D.Ind. 2000); Johnson v. Gmeinder, 191 F.R.D. 638, 645-47 (D.Kan. 2000); accord Suskind v. Home Depot Corp., No. 99-10575, 2001 WL 92183 (D.Mass. Jan. 2, 2001). There is a sizable minority position to the contrary . See Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D.Mich. 1995) (Enslen, C.J.).
In the present case, however, it is not necessary to apply the rule. Procter Gamble has presented the court with affidavits and deposition testimony clearly establishing that the testifying expert witnesses never read, reviewed or considered the subject documents in forming their opinions. In such circumstances, the rationale for a broad reading of the disclosure requirements of Rule 26(a)(2) disappears. If an expert witness has read a document provided by the client, effective cross-examination is guaranteed by finding a waiver of privilege, even if the testifying expert eschews any formal "reliance" on the document. Where, however, the witness clearly did not read or review the document, the purpose for the rule in favor of waiver vanishes. See Johnson, 191 F.R.D. at 648 ("Without proving disclosure, Plaintiffs cannot prove waiver.").
Plaintiff has failed to establish a factual foundation for the relief it seeks. Plaintiff's motion to compel will therefore be denied.