Opinion
No. 99 Civ. 9033 (RCC) (HBP).
July 30, 2004
MEMORANDUM OPINION AND ORDER
I. Introduction
By letter dated July 12, 2004, plaintiffs seek to compel production of certain documents and for the costs associated with the continuation of the deposition of defendants' expert. For the reasons set forth below, plaintiffs' motion is granted in part and denied in part without prejudice.
II. Facts
This is a motion to compel disclosure of certain documents relating to defendants' expert witness, Andrew Jassin.
Prior to Jassin's deposition, plaintiffs requested production of the following documents by letter dated June 22, 2004:
1. Any and all documents pertaining to any and all written and/or oral agreements pertaining to the preparation of a report, testimony, and/or consultation by Andrew Jassin;
2. Any and all documents pertaining to any and all monies or other thing(s) of value transferred or to be transferred by or on behalf of defendants to Andrew Jassin or other person or entity in connection with this case;
3. Any and all documents pertaining to oral, electronic and/or written communications from any and/or all defendant(s) and/or defense counsel directly or indirectly to Andrew Jassin;
4. Any and all documents pertaining to oral, electronic and/or written communications from Andrew Jassin directly or indirectly to any and/or all defendant(s) and or/defense counsel; and
5. Any and all documents pertaining to any and all outlines and/or any and all drafts of a report, study and/or memorandum by Andrew Jassin.
Defendants responded to plaintiffs' request in a letter dated July 1, 2004, and refused to produce the documents.
In response to plaintiffs' letter application, defendants have submitted a letter to the Court, dated July 20, 2004, in which they argue that they need not disclose the requested documents because (1) some of the documents requested are protected by the work product doctrine; (2) the document request is beyond the scope of Judge Casey's discovery Order, and (3) the request is vague and ambiguous.
III. Analysis
A. Rule 26(a)(2) and the Work Product Doctrine
Defendants' principal argument is that the documents sought are protected by the work product doctrine. Resolution of this dispute thus requires resolution of the apparent tension between Fed.R.Civ.P. 26(a)(2)(B), which requires production of, inter alia, all material considered by a testifying expert witness, and the work-product doctrine, which ordinarily shields from disclosure trial preparation material.
Rule 26(a)(2)(B) requires any party employing an expert witness to provide a written report containing
a complete statement of all opinions to be expressed and the basis therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
A plain reading of the Rule suggests that any material that is "considered by the witness" must be disclosed whether or not it would otherwise be protected by the work product doctrine. As the Advisory Committee Notes to the 1993 Amendments to Rule 26(a)(2) explain,
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 on by the expert — are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.
The conclusion that the disclosure requirements of Rule 26(a)(2)(B) take precedence over the work-product doctrine has been confirmed in numerous decisions. For example, in Aniero Concrete Co. v. New York City Sch. Construction Auth., 94 Civ. 9111 (CSH) (FM), 2002 WL 257685 at *2 (S.D.N.Y. Feb. 22, 2002), the Honorable Frank Maas, United States Magistrate Judge, concluded that
[T]he overwhelming weight of authority in this Circuit — including several recently decided cases — indicates that the Rule 26(a)(2)(B) disclosure requirement trumps the substantial protection otherwise accorded opinion work product under Rule 26(b)(3). See, e. g., United States Fid. Guar. Co. v. Braspetro Oil Servs. Co., 97 Civ. 6124, 2002 WL 15652, at *7 (S.D.N.Y. Jan. 7, 2002) (Katz, Mag. J.); MIC Communications Corp. v. Dataline, Inc., 01 Civ. 3849, 2001 WL 1335291 (S.D.N.Y. Oct. 30, 2001) (Eaton, Mag. J.); In re Air Crash at Dubrovnik, Croatia, No. MDL 1180, 2001 WL 777433, at *11 (D. Conn. June 4, 2001) (Covello, Ch. J.); W.R. Grace Co. v. Zotos Int'l, Inc., No. 98 CV-838S, 2000 WL 1843258, at *4 (W.D.N.Y. Nov. 2, 2000) (Foschio, Mag. J.). See also In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) ("Indeed, we are unable to perceive what interests would be served by permitting counsel to provide core work product to a testifying expert and then to deny discovery of such material to the opposing party."); Musselman v. Phillips, 176 F.R.D. 194, 198 (D. Md. 1997) (mandating disclosure even though "the Fourth Circuit has adopted one of the most protective positions of any circuit with respect to the discoverability of opinion work product"); 8 Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice and Procedure § 2016.2, at 252 (2d ed. 1994) ("At least with respect to experts who testify at trial, the disclosure requirements of Rule 26(a)(2) adopted in 1993, were intended to pretermit further discussion and mandate disclosure despite privilege.").
Similarly, in Lugosch v. Congel, 219 F.R.D. 220, 249 (N.D.N.Y. 2003), the court held:
For a host of reasons, particularly overall functionality, predictability, litigation certainty, truth seeking, and eventual testimonial use, this Court embraces those precedents that support the bright line rule that expert disclosure of all data and information considered by the expert should be disclosed notwithstanding the presence of work product consideration.
(Emphasis in original.)
And in Baum v. Village of Chittenango, 218 F.R.D. 36, 40 (N.D.N.Y. 2003), the Court, after tracing the development of the expert disclosure requirements with respect to expert witnesses and the work product doctrine, concluded "that Rule 26(a)(2) (B)'s expert disclosure requirement is paramount."
Accordingly, defendants' work product objection is overruled.
I also note that defendants have failed to provide an index of documents withheld on the basis of the work product doctrine as required by Fed.R.Civ.P. 26(b)(5) and Local Civil Rule 26.2. Defendants' unjustified failure to produce this index is by itself a sufficient basis on which to conclude that defendants have waived their work product claim. Hurst v. F.W. Woolworth Co., 95 Civ. 6584 (CSH), 1997 WL 61051 at *6 (S.D.N.Y. Feb. 11, 1997); John Labatt Ltd. v. Molson Breweries, 93 Civ. 75004, 94 Civ. 71540 (RPP), 1995 WL 23603 at *1 (S.D.N.Y. Jan. 20, 1995),appeal transferred sub nom., Dorf Stanton Communications, Inc. v. Molson Breweries, 56 F.3d 13 (2d Cir. 1995), aff'd, 100 F.3d 919 (Fed. Cir. 1996); Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994); Allstate Life Ins. Co. v. First Trust, N.A., 92 Civ. 4865 (SWK), 1993 WL 138844 at *3 (S.D.N.Y. Apr. 27, 1993); Dena Bank v. Manufacturers Hanover Trust Co., 89 Civ. 2946 (MJL), 1990 WL 155591 at *2 (S.D.N.Y. Oct. 9, 1990); Carte Blanche (Singapore) PTE., Ltd. v. Diners Club Int'l Inc., 130 F.R.D. 28, 32 (S.D.N.Y. 1990); PKFinans Int'l Corp. v. IBJ Schroder Leasing Corp., 93 Civ. 5375 (SAS) (HBP), 86 Civ. 1816 (SAS) (HBP), 1996 WL 525862 at *3-*4 (S.D.N.Y. Sept. 17, 1996).
B. Scope of Permitted Discovery
Defendants also argue that the documents requested by plaintiffs fall outside the scope of Judge Casey's discovery Order, which, according to defendants, was limited to the examination of experts and the exchange of expert reports.
Defendants' argument is without merit. Plaintiffs' document request is substantially redundant of the disclosure obligations imposed by Fed.R.Civ.P. 26(a)(2) which sets forth the information that must be contained in a testifying expert'sreport. Since there is no dispute that Judge Casey directed the service of the reports required by Rule 26(a)(2)(B), the discovery is not beyond the limit set by Judge Casey.
There can be no doubt that Judge Casey had the authority to waive or modify the requirements of Rule 26(a)(2)(B). There is, however, no indication that he intended to do so.
C. Vagueness and Ambiguity
Defendants' final argument is that the phrasing "[a]ny and all documents," when read in conjunction with the text of the separate requests, extends the scope of the request beyond the bounds of this case. Defendants also contend that the lack of a time limitation and plaintiff's use of the words "pertaining" and "indirectly" render the requests vague and ambiguous.
Although the use of the phrase "any and all documents" is a shibboleth in state practice, see In re Citibank, N.A., 100 A.D.2d 784, 784, 474 N.Y.S.2d 485, 486 (1st Dep't 1984), it has no similar significance in this court and does not render the request overbroad or vague.
The absence of a time limitation is appropriate so long as the documents relate to the work Jassin performed in connection with this matter.
Finally, defendants' objections based on the use of the words "pertaining" and "indirectly" are so silly that they require no comment.
D. Application for Expenses
Lastly, plaintiffs seek an award of the expenses they will incur at a continuation of the Jassin deposition after production of the documents sought herein. It is, however, impossible to determine at this time whether a continuation of Jassin's deposition will be necessary and, if so, what additional costs will be incurred.
For example, counsels' letters do not specify the method by which Jassin charges plaintiffs for the deposition. If Jassin charges an hourly fee, an order awarding costs may be unwarranted because the delayed production of the documents in dispute should not increase the total time of the deposition. If the documents in dispute give rise to an hour of questioning, they would have given rise to the same hour of questioning had they been timely produced. If, on the other hand, Jassin charges based on a per-day basis, an Order requiring defendants to pay the fee may be justified. Nevertheless, given the present scarcity of information concerning the fee, an order on this issue would be premature at this point. This aspect of plaintiff's motion is, therefore, denied without prejudice.
IV. Conclusion
Accordingly, for all the foregoing reasons, plaintiffs' application to compel the production of the documents requested in their counsel's letter dated June 22, 2004 is granted. Defendants are directed to produced those documents fortwith. The balance of plaintiff's application is denied without prejudice to renewal.
SO ORDERED.