The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Before the Court is Defendant J.P. Murray Company's motion to bar further reference to privilege notes and motion to strike Charles Schneider as expert witness (Doc. 102). Plaintiff Piasa Commercial Interiors, Inc. (hereinafter "Piasa") has filed a response to the motion (Docs. 105 & 106). In addition, Piasa has also filed a motion for leave to name William Pistrui as an additional expert witness (Doc. 112). Defendant J.P. Murray Company, Inc. (hereinafter "Murray") has filed a response to that motion (Doc. 113)*fn1 and Piasa has filed a reply (Doc. 115).
This case involves a contract between Murray and Piasa to do certain work on the Richland Memorial Hospital, including the installation of fireproofing materials. Piasa filed a Second Amended Complaint alleging that, among other things, Murray breached its subcontract with Piasa. Murray has filed a counterclaim against Piasa alleging that Piasa's work on the fireproofing was defective.
During the course of the litigation, Murray, as part of its discovery requirements, produced numerous documents including a document (referred to as MC1565)including one of its former employee's notes which it now claims is privileged because it was the product of a meeting between the employee, who was employed by Murray at the time of the meeting, and Murray's counsel. Murray states that upon later learning of the error, it informed Piasa that MC1565 was privileged during the deposition of the employee. Murray later sent two written notices of its assertions to Piasa pursuant to FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B); the notices demanded that Piasa return all of its copies of MC1565 (Doc. 102 Exs. C & D). Instead of returning the document, Piasa referenced the document in its summary judgment briefs. Murray also alleges that Piasa gave copies of MC1565 to its expert witness Charles Schneider which he used as the basis of his opinions.
Now, Murray has filed a motion arguing that future reference to MC1565 should be barred because Piasa used the document in direct violation of FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B). Murray also asks that the Court strike Charles Schneider as an expert witness as he relied on MC1565 in forming his opinions. Plaintiff has filed a response, arguing that the MC1565 is not privileged and any privilege that Murray had was waived by Murray. Having reviewed the arguments and exhibits provided by the parties, the Court rules as follows.
A. Motion to Bar Notes and Strike Charles Schneider as Expert
Murray's motion argues that further use of MC1565 should be barred and that Piasa's witness Charles Schneider should be stricken because Piasa gave MC1565 to Scheider for purposes of developing his opinions. Murray maintains that Piasa continued to use the document and gave the document to Schneider even after being informed by Murray pursuant to FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B) that the document might be privileged. Piasa only contends that document is not privileged and that Murray has waived any privilege it might have had in the document.
FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B) provides that:
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
The requirements in Rule 26(b)(5)(B) are straight forward. Once a party is notified that a claim of privilege is being made, the party must either return or destroy the document or the party may turn the document over to the court for determination of the claim.
Here, Piasa blatantly disregarded the requirements of Rule 26(b)(5)(B). Piasa was first informed by Murray that it asserted MC1565 was privileged at the April 17, 2008 deposition hearing of Thomas Underhill (Doc. 103 Ex. 3 at pp. 68-69, 108-109). Murray followed up that claim with two letters to Piasa, claiming that the document was privileged and demanding its return (Doc. 103 Exs. C & D). Piasa does not dispute that it did not return the documents, nor did it submit the document to this Court for review. Instead, Piasa referenced the contents of the document in its responsive briefing to a summary judgment motion ...