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Ansell Healthcare Products LLC v. Reckitt Benckiser LLC

United States District Court, D. Delaware

December 11, 2017



         At issue here is the parties' dispute regarding the disclosure of certain documents exchanged between Plaintiff and Plaintiffs damages expert, Mr. John Hansen, in connection with Mr. Hansen's review of an internal settlement proposal. (D.I. 237 at 1). Mr. Hansen is a Vice President at TM Financial. (D.I. 230-1 at 144). Plaintiff asserts that the documents are privileged under Federal Rule of Civil Procedure 26(a)(2)(B) because Mr. Hansen reviewed them in his capacity as a consulting expert, which was separate from his later work as a testifying damages expert. (Id.). Plaintiff further argues that Documents 2 and 3(c) are protected from disclosure even if the court finds no distinction between Mr. Hansen's testifying and consulting roles. (Id. at 203). Specifically, Plaintiff contends that Document 2 is a draft report of Mr. Hansen's testifying expert report, and that Document 3(c) contains opinion work product of Ansell's representatives. (Id.). Defendant counters that the Federal Rules compel production of the documents because there was no clear distinction between Mr. Hansen's role as a testifying expert and a consulting expert, that Document 2 is not a draft report, and that Document 3(c) does not fall within the protection of the work product doctrine. (D.I. 247).

         A. Disclosures and Privilege Under Rule 26

         The person asserting a claim of privilege bears the burden of establishing its application. In re Grand Jury Investigation, 918 F.2d 374, 385 n.15 (3d Cir. 1990). Rule 26(a)(2)(B) requires that a testifying expert witness provide a written report containing, among other things, "a complete statement of all opinions the witness will express" and "the facts or data considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Though Rule 26(a)(2)(B)'s required disclosures for testifying experts are broad, Rules 26(b)(3)(A), 26(b)(3)(B), and 26(b)(4) limit the scope of discovery with respect to testifying experts.

         Rule 26(b)(4) protects all forms of communication between a party's attorney and experts required to provide written reports under Rule 26(a)(2)(B), with three exceptions. Under Rule 26(b)(4)(C), communications that (1) relate to an expert's compensation, (2) identify facts or data provided by the party's attorney that the expert considered in forming expressed opinions, or (3) identify assumptions provided to the expert by the party's attorney and that the expert relied on are not protected from disclosure. Fed.R.Civ.P. 26(b)(4)(C)(i)-(iii).

         The scope of discoverable material under Rule 26(b)(4)(C)(ii) has varied over time. Prior to 1993, Rule 26(b)(4) permitted discovery of material only actually known and relied upon by a testifying expert. Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 462 (E.D. Pa. 2005) (discussing history of the scope of expert discovery under Rule 26). From 1993, when the requirement for testifying expert reports was initially adopted, until 2010, the required disclosures included "data and other information considered by the expert." See Fed. R. Civ. P. 26 advisory committee's notes to 2010 amendments (discussing the history of this provision). The Advisory Committee notes to the 1993 amendments describe the effect of the broadened disclosures:

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.

Fed. R. Civ. P. 26 advisory committee's notes to 1993 amendments. The scope of information "considered" covered "any information furnished to a testifying expert that such an expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if such information is ultimately rejected." Synthes Spine, 232 F.R.D. at 463. The policy underlying the expanded scope of expert discovery was to ensure, "sufficiently in advance of trial[, ] that opposing parties have a reasonable opportunity to prepare for effective cross examination" of each other's experts. Fed.R.Civ.P. 26 advisory committee's notes to 1993 amendments.

         The 2010 amendments to Rule 26(a)(2) narrowed the scope of required disclosures in testifying expert reports from "the data and other information considered by the witness" to "the facts or data considered by the witness." Fed.R.Civ.P. 26(a)(2). The Advisory Committee notes to the 2010 amendments of Rule 26 indicate that the amendments are "intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports." Fed.R.Civ.P. 26 advisory committee's notes to 2010 amendments. More specifically,

[t]he refocus of disclosure on "facts or data" is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the intention is that "facts or data" be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data "considered" by the expert in forming the opinions to be expressed, not only those relied upon by the expert.

Id. As other courts have recognized, "[i]t was the disclosure of attorney-expert communications, including attorney work product, that the Advisory Committee was attempting to arrest[, ]" "not theories or mental impressions of experts.'" Yeda Res. & Dev. Co., Ltd. v. Abbot GmbH & Co. KG, 292 F.R.D. 97, 112 (D.D.C. 2013).

         B. Mr. Hansen's Dual Roles

         Consulting expert discovery is much more limited than testifying expert discovery- materials considered by a consulting expert are generally not discoverable. Employees Committed for J. v. Eastman Kodak Co., 251 F.R.D. 101, 104 (W.D.N.Y. 2008) ("When an expert is retained as a litigation consultant, however, materials reviewed or generated by the expert are generally privileged and immune from disclosure."); Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 at *2 (E.D. Pa. March 17, 2008) ("Information exclusively considered by such an expert in his or her capacity as a consulting expert does not fall under Rule 26(a)(2)(B)."). The "dual hat" expert initially hired as a consulting expert and subsequently retained as a testifying expert in the same case thus presents issues regarding the appropriate scope of discovery.

         In cases involving a "dual hat" expert, privilege applies "only [to] those materials generated or considered uniquely in the expert's role as consultant." S.E.C v. Reyes, 2007 WL 963400 at *1 (N.D. Cal. Mar. 30, 2007). The party resisting disclosure of the documents must demonstrate that "the information considered for consulting expert purposes was not also considered pursuant to the expert's testifying function." Bro-Tech, 2008 WL 724627 at *2; In re Air Crash at Dubrovnik, Croatia on April 3, 1996, 2001 WL 777433 at *4 ("the party seeking to compel the production of documents should not have to rely on the resisting party's representation that the documents were not considered by the expert in forming his opinion."). In other words, "a clear distinction must be made between documents the expert considered in his role as a consultant and those he considered in his role as a testifying expert." Oklahoma v. Tyson Foods, 2009 WL 1578937 at *5. "[I]f the subject matter of the materials sought to be protected relates to the facts and opinions the expert expresses in his report, a court should order disclosure when there is at least an ambiguity as to whether the materials informed the expert's opinion." Robocast v. Apple, Inc., 2013 WL 12155813 at *3 (D. Del. Sept. 18, 2013); Yeda, 292 F.R.D. at 108; B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of N.Y., Inc., 171 F.R.D. 57, 62 (S.D.N.Y. 1997) ("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."). When "the subject matter [in the material at issue] directly relates to an opinion in the expert's report, there will be an ambiguity." See, e.g., Robocast, 2013 WL 12155813 at *3; Yeda, 292 F.R.D. at 109; Reyes, 2007 WL 963400 at *2; Air Crash, 2001 WL 777433 at *3.

         Here, Plaintiff has taken the position that Mr. Hansen's consulting role, involving worldwide settlement analysis, was a "separate engagement[]" that "does not relate directly to [his United States-focused damages analysis] as a testifying expert." (D.I. 237 at 1-2). Plaintiff also argues that there is a clear distinction between Mr. Hansen's consulting and testifying roles because the information he considered in his consulting capacity, which was broader in geographic scope and included ...

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