Opinion
00 Civ. 5141 (GBD) (JCF).
September 1, 2004
MEMORANDUM AND ORDER
In a Memorandum and Order dated August 17, 2004, I decided each of the pending discovery motions save one: I deferred decision on Seagate Technology LLC's Motion to Compel Convolve Inc. to Produce Unredacted Financial Documents pending efforts by counsel to narrow the scope of their dispute. On August 11, 2004, Seagate indicated that attempts to reach a compromise had failed, and counsel submitted copies of all redacted documents for my review. (Letter of Keaton S. Parekh dated Aug. 11, 2004). In response, Convolve indicated that after further review it would produce in unredacted form 32 of the documents previously at issue. Convolve also submitted for my in camera consideration the remaining 16 documents, all of which reflect fees paid in this lawsuit to plaintiffs' counsel and to litigation consultants. (Letter of Kenneth A. Freeling dated Aug. 19, 2004). Convolve argues that this information was properly redacted because it is protected under the work product rule and not subject to disclosure under Rule 26.
In a decision dated September 16, 2003, the Special Master rejected Convolve's contention that the requested information was irrelevant, finding that Convolve had placed its income — including such costs as its litigation expenses — at issue in this lawsuit. (Letter of Pasquale A. Razzano dated Sept. 16, 2003, attached as Exh. A to Affidavit of Kenneth A. Freeling dated March 5, 2004, at 2-5). The new arguments now advanced by Convolve come too late because they could have been raised to the Special Master but were not. At any rate, they fail on the merits. The substantive work of an attorney or consultant during litigation may, of course, be work product. However, the record of fees paid for such work is not itself work product because it was not produced in anticipation of litigation; rather, it was created in the normal course of preparing tax returns and other financial records. Furthermore, the identity of nontestifying experts is not exempt from disclosure. See Biovail Corp. International v. Hoechst Aktiengesellschaft, No. Civ.A. 98-1434, 1999 WL 33454801, at *7 (D.N.J. Nov. 12, 1999); MacGillivray v. Consolidated Rail Corp., Civ. A. No. 91-0774, 1992 WL 57915, at *3 (E.D. Pa. March 17, 1992); Threlkeld v. Haskins Law Firm, Civ. A. No. 88-2392, 1990 WL 124876, at *1 (E.D. La. Aug. 21, 1990).
Accordingly, the disputed documents shall be produced in unredacted form.
SO ORDERED.