The opinion of the court was delivered by: Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
Before the Court on opening day of baseball season in Chicago is Plaintiff's motion to compel deposition testimony and disclosure of documents from Defendants' consumer survey report. Plaintiff Sara Lee Corporation ("Plaintiff") alleges that Defendants Kraft Foods Inc. and Kraft Foods Global, Inc. (collectively "Defendants") failed to comply with the rules governing expert discovery. According to Plaintiff, Defendants improperly instructed their expert not to answer certain deposition questions and to withhold certain documents relating to this litigation. Defendants respond that Plaintiff seeks materials beyond the scope of expert discovery. For the reasons explained below, Plaintiff strikes out and the Court denies Plaintiff's motion to compel.
In this lawsuit, two of the nation's largest hot dog manufacturers accuse each other of false and deceptive advertising. Plaintiff, maker of Ball Park Franks, sued Defendants, who own the Oscar Meyer brand, and Defendants filed counterclaims. Both sides have retained experts to testify about the allegedly misleading nature of each other's ads.
The motion to compel involves a defense expert retained to testify about one of Plaintiff's advertisements and to consult, but not testify, about another. Defendants retained Dr. Yoram ("Jerry") Wind, the Lauder Professor of Marketing at the University of Pennsylvania Wharton School of Business, to conduct a consumer perception survey and to offer expert testimony about Sara Lee's "Taste America's Best Beef Franks" advertisement. Ex. 8 to Pl. Mem.*fn1 (copy of ads). With the help of a market research firm, Dr. Wind conducted a survey about Plaintiff's "Taste America's Best Beef Franks" ads. Using the survey, Dr. Wind issued an expert report opining that Plaintiff's advertisement misled "a significant portion of the relevant consuming population" into believing that it was Ball Park Angus Beef Franks, rather than Ball Park Beef Franks, that were advertised as "America's Best Beef Franks." Ball Park Beef Franks won the ChefsBest award referenced in the ad. Rule 26 Expert Report 1--2, Ex. A to Def. Resp.*fn2
The dispute arises over Dr. Wind's role as a non-testifying consultant regarding another of Plaintiff's ads. Dr. Wind consulted Defendants but will not testify concerning Plaintiff's "We'd Compare Our Dogs to Others But They Aren't Even in the Same League" advertisement. Ex. 6 to Pl. Mem. (copy of ad). Defendants did not produce to Plaintiff any materials or communications relating to this ad in their expert disclosures. Plaintiff first learned of the dual relationship at Dr. Wind's deposition, when Defendants instructed Dr. Wind not to answer questions about his work as a consultant, where he has prepared no expert report and will not testify.
Defendants submitted in camera to this Court their written and electronic communications with Dr. Wind regarding the "Not Even in the Same League" ad. They are few in number, and a review shows that Dr. Wind did nothing more than advise defense counsel how they might conduct pilot surveys of the "Not Even in the Same League" ad. He suggested possible methodology and also provided price quotes. These communications are consistent with Defendants' representation to the Court that Dr. Wind advised Defendants about a pilot study of the ad but that defense counsel independently conducted the survey and did not share the results with Dr. Wind.
Plaintiff now requests that the Court order Defendants to produce all previously undisclosed documents related to Dr. Wind's consultations, and order Dr. Wind to answer deposition questions about his services regarding the "Not Even in the Same League" ad. Defendants oppose the motion to compel.
A choice-of-law agreement between the parties also bears on the motion. In preparation for expert discovery, the parties agreed to adopt the newly amended Federal Rule of Civil Procedure 26 relating to expert disclosures and discovery. The attorneys also exchanged a number of e-mails attempting to clarify what documents and communications fell within their agreement. Contrary to Plaintiff's assertion, however, the exchanges do not evince an agreement to provide attorney-expert communications beyond what is required by the amended Rule 26. In Plaintiff's counsel's own words, the parties agreed to limit the production of attorney-expert communications to "any substantive e-mails or other documents that we sent to our experts regarding facts, opinions, or the bases for opinions that are discoverable under Rule 26(b)(4)(C) [a provision added by the 2010 amendements]." E-mail dated Dec. 15, 2010, Ex. B to Def. Resp. (emphasis added). Accordingly, the Court will apply amended Rule 26.
This motion implicates the two different standards that govern discovery related to testifying experts and non-testifying consultants. Federal Rule of Civil Procedure 26(a)(2) sets forth required expert disclosures. This rule was amended in 2010 to narrow the scope of expert discovery, and Rule 26(b)(4)(C) was added to provide work-product protections concerning many communications between a party's attorney and expert witness. Rule 26(b)(4)(D), meanwhile, establishes a high barrier to discovering opinions of a non-testifying consultant.
First, a review of the standards for discovery relating to testifying experts. In 1993, Rule 26(a)(2)(B) was amended to require a testifying expert to produce a written report setting forth a complete statement of the expert's opinions, as well as "the data and other information considered by the witness in forming the opinions." Many courts interpreted the rule as establishing a "bright-line" approach that required disclosure of all attorney-expert communications, including "otherwise protected work product and attorney-client communications" if the expert "read or reviewed the privileged materials before or in connection with formulating his or her opinion." In re Commercial Money Ctr., Inc., Equip. Leasing Litig., 248 F.R.D. 532, 537 (N.D. Ohio 2008) (citing W. Resources, Inc. v. Union Pac. R.R. Co., No. 00-2043-CM, 2002 WL 181494, at *9 (D. Kan. Jan. 31, 2002)); see also In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) ("[F]undamental fairness requires disclosure of all information supplied to a testifying expert in connection with his testimony," regardless of whether it is work product or not.) Such broad expert discovery carried with it several unfortunate consequences. It increased discovery costs and impeded effective communication between attorneys and their experts, sometimes even inducing parties to retain two separate sets of experts-one for consultation and another to testify. Fed. R. Civ. P. 26 advisory committee's note (2010 Amendments).
In December 2010, Rule 26 was amended to address the undesirable effects of routine discovery into attorney-expert communications. Id. First, Rule 26(a)(2)(B)(ii) was amended to require disclosure of "facts or data," rather than "data or other information," considered by an expert witness in forming the opinions to be offered. The advisory committee intended this change to "limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel." Id. That said, the committee urged that the amendment be interpreted broadly to cover "any facts or data 'considered' by the expert in forming the opinions to be expressed, not only those relied upon by the expert." Id.
In addition, Rule 26(b)(4)(C) was added to provide work-product protection against discovery into communications between expert witnesses and counsel. The new provision applies work-product protections to "communications between the party's attorney and [testifying expert], regardless of the form of the communications." Fed. R. Civ. P. 26(b)(4)(C). That said, the new provision withholds work-product protections from communications that (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the ...