Opinion
94 Civ. 9111 (CSH) (FM)
February 21, 2002
OPINION AND ORDER
I. Introduction
Defendant New York City School Construction Authority ("SCA") seeks an order compelling co-defendant Aetna Casualty and Surety Company ("Aetna") to produce certain documents containing the mental impressions of Aetna's counsel that were supplied to Aetna's experts. For the reasons set forth below, the SCA's application is granted.
II. Factual Background
This eight-year old contract action arises out of the SCA's renovation of Morris High School in the Bronx. At the outset, the SCA awarded the work to P.J. Carlin Construction Company, and Aetna provided the Performance and Payment Bond. After Carlin defaulted, Aetna retained plaintiff Aniero Concrete Co, Inc. ("Aniero"), to complete the job. Less than one year later, Aniero also ceased its work, and it has sued Aetna and the SCA, alleging, inter alia, that it was misled about the scope of the remaining contract work. The SCA, in turn, has cross-claimed against Aetna, seeking damages for the cost of completing the project after Aniero's default.
Prior to August 3, 2001, the SCA anticipated that Aetna's construction expert would be Carlos Guerrero, who had overseen the Morris High School project on Aetna's behalf (See 8/28/01 Tr. at 28). On or about that date, however, the SCA learned that, in addition to Mr. Guerrero, Aetna had retained, and intended to proffer the expert testimony of, James Cashin of Cashin Spinelli Heller Ferretti, LLC., (Id. at 29).
Following delays caused by the World Trade Center tragedy, the SCA deposed Mr. Cashin on December 20, 2001. During his deposition, Mr. Cashin was shown a February 9, 2001 letter sent to his colleague, Michael Spinelli, by Aetna's counsel Marc Lepelstat, Esq., of the Lambert Weiss firm. (the "February 9th Letter"). Annexed to the February 9th Letter were three documents for which Aetna now claims work product protection: a Lambert Weiss synopsis of the SCA's completion costs and two further analyses, dated February 1 and February 5, 2001, prepared by Mr. Guerrero (the "Contested Documents"). Mr. Cashin testified that he did not recall seeing the Contested Documents, but that it was reasonable to assume that Mr. Spinelli would have reviewed them in the ordinary course of business. (Deposition of James Cashin taken on December 20, 2001, at 146-153). Mr. Cashin added that he himself might have seen the Lambert Weiss synopsis. (Id. at 146).
A third analysis by Mr. Guerrero, dated July 10, 1998, was produced to the SCA by Aetna and is not in dispute.
When this testimony was brought to my attention during a telephone conference on December 20, 2001, I opined that the Contested Documents would likely be protected from disclosure unless Aetna's experts had actually relied upon them in forming their opinions. (In making this statement, I had in mind Rule 612 of the Federal Rules of Evidence, which affords a judge the discretion to require production of some or all of a privileged document that a witness actually has used to refresh his recollection before testifying.) I nevertheless asked counsel for Aetna and the SCA to submit letter briefs addressing the discoverability of the Contested Documents. Those letters, together with some supplementary materials, were received in late December 2001.
III. Discussion
A. Disclosure of "Core" Work Product
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure was amended in 1993 to require litigants to disclose to their adversaries a written report prepared and signed by any witness retained to furnish an expert opinion. The expert report must "contain a complete statement of all opinions to be expressed and the basis and reasons therefor" as well as "the data or other information considered by the witness" in forming his opinion. Fed.R.Civ.P. 26(a)(2)(B).
The Advisory Committee Note accompanying the 1993 Amendments states that in light of this obligation,
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.Id., advisory committee's notes to 1993 Amendment. Despite this language, however, whether Rule 26(a)(2)(B) requires a litigant to disclose core work product supplied to an expert is a question that has continued to vex both courts and commentators. Compare B.C.F. Oil Refining, Inc. v. Consol. Edison Co., 171 F.R.D. 57, 66-67 (S.D.N Y 1997) (Motley, J.) (opinion work product no longer protected), with Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 642-643 (E.D.N.Y. 1997) (Orenstein, Mag. J.) (Rule 26(a)(2)(B) disclosure "extends only to factual materials and not to core attorney work product"). Also compare Suskind v. Home Depot Corp., No. Civ. A. 99-10575, 2001 WL 92183, at *6 (D. Mass. Jan. 2, 2001) (collecting cases and concluding that the "weight of the caselaw" and "sound policy judgments" favor disclosure of core work product considered by experts) with Christa L. Klopfenstein, Note,Discoverability of Opinion Work Product Materials Provided to Testifying Experts, 32 Ind. L. R. 481, 483, 495-506 (1996) (collecting cases and concluding that "both the text of the rule and sound policy dictate that work product materials provided to testifying experts should not be discoverable"). Unfortunately, the Second Circuit has not had an opportunity to provide any guidance concerning this issue.
Notwithstanding Judge Orenstein's decision in Magee, the 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."). In fact, Aetna and its counsel previously were expressly warned that such disclosure might be required if its expert witnesses considered work materials in the course of forming their opinions. See Aetna Cas. Sur. Co. v. Manshul Constr. Co., No. 95 Civ. 3994, 2001 WL 484438, at *1 (S.D.N.Y. May 7, 2001) (Dolinger, Mag. J.)
B. The Contested Documents Were "Considered" By Aetna's Experts.
A party seeking to assert a claim of work product protection bears the burden of establishing the factual basis therefor. In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 223 (S.D.N.Y. 2001) (Swain, J.);Madanes v. Madanes, 199 F.R.D. 135, 150 (S.D.N.Y. 2001) (Sand, J.). One way in which Aetna could meet that burden would be by showing that its experts had not "considered" the Contested Documents in the course of forming their opinions. In that regard, Aetna contends that it should not be required to make any further disclosures here because Mr. Cashin testified at his deposition "that he does not recall even seeing the documents in question, much less reviewing them and/or relying on them." (Letter from Marc L. Lepelstat, Esq. to the Court dated December 26, 2001).
Most courts interpreting the Rule 26(a)(2)(B) requirement that documents be "considered" by a testifying expert before they must be disclosed have concluded that the term extends not just to the documents relied on by an expert, but also to any documents "that were provided to and reviewed by the expert." See Trigon Ins. Co. v. United States, 204 F.R.D. 277, 283 (E.D. Va. 2001); accord Pioneer Hi-Bred, 238 F.3d at 1375 ("the documents and information disclosed to a testifying expert in connection with his testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report."). See also Amway Corp. v. Procter Gamble Co., No. 98 Civ. 726, 2001 U.S. Dist. LEXIS 5317, at *3-4 (holding that disclosure is not required when affidavits and deposition testimony "clearly establish that the testifying expert witness never read, reviewed, or considered the subject documents").
In this case, I need not resolve whether an expert's failure to review the documents furnished by counsel would exempt them from disclosure because Aetna has not shown that this, in fact, what occurred. At best, Mr. Cashin indicated that he does not "recall" reviewing the Contested Documents. This is a far cry from showing the he never reviewed them. Moreover, during his testimony Mr. Cashin conceded that it is his firm's regular practice to review documents similar to the Contested Documents to determine if they are relevant. He also admitted that there is no reason to believe that this policy was not followed here.
In sum, Aetna plainly has not shown, as it must, that its experts did not "consider" the Contested Documents enclosed in the February 9th Letter.
IV. Conclusion
For the foregoing reasons, defendant Aetna is directed to turn over the Contested Documents to the SCA within one week.
SO ORDERED.