Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. City of Rockford

United States District Court, N.D. Illinois, Western Division

March 27, 2018

Lumont Johnson & Anthony Ross, Plaintiffs,
v.
City of Rockford, et al., Defendants. Tyjuan Anderson, Plaintiff,
v.
City of Rockford, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston U.S. Magistrate Judge.

         Defendants' Joint Motion to Compel (Dkts. #177 and #156) is granted. Plaintiffs' Motion to Compel Discovery from Individual Defendants' Expert Witness (Dkts. #215 and #195) is granted. The information sought by the Defendants' motion and the documents sought by the Plaintiffs' motion must be provided by April 16, 2018. Discovery remains closed.

         I. APPLICABLE LAW

         The parties have filed dueling motions to compel relating to two expert witnesses. Defendants have filed a motion to compel to require Plaintiffs' expert, Wilfred Daniel Libby, to identify who typed portions of his expert report. Not to be outdone, Plaintiffs filed a corresponding motion to compel the Individual Defendants to produce two documents that were provided to their expert, Michael D. Lyman, by Individual Defendants' counsel. The Court grants both motions. But to forestall any future motions resulting from this order, the Court reiterates that discovery remains closed. Attempts to reopen discovery in light of this ruling will not be allowed.

         A straight-forward application of Rule 26(b)(4) resolves both motions. In relevant part, as amended in 2010, Rule 26(b)(4) provides the following:

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any reports or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witness. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

Fed. R. Civ. p. 26(b)(4)(B), (C) (emphasis added). A plain reading of the rule establishes three important points. First, subsection (B) applies to drafts of reports and disclosures. The protection from disclosure does not apply to the final report or disclosure. By definition, a final document, be it a report or disclosure, is not a draft. See Merriam-Webster, https://www.merriam-webster.com/dictionary/draft (last visited Mar. 26, 2018) (defining “draft” as a preliminary sketch, outline, or version); see also Bouvier's Law Dictionary 939 (1914) (defining “draft” as “the rough copy of a legal document”). Final documents are fodder for discovery.

         Second, the broad protections for communications between an attorney and the expert witness captured by subsection (C) are limited by specified exceptions. Accordingly, by definition, if a party is seeking protection under subsection (C), the communication could only be protected if (1) it were made by an attorney, and (2) it does not fall within one of the three specified exceptions.

         Third, there is a distinction between subsections (C)(ii) and (C)(iii). Subsection (C)(ii) exempts from protection facts or data the expert considered in forming the opinions. In contrast, subsection (C)(iii) exempts from protection assumptions the expert relied on in forming the opinions. So subsection (C)(ii) exempts from protection facts or data considered, but subsection (C)(iii) exempts from protection assumptions relied upon.

         The 2010 amendments to Rule 26 added the protection for drafts of reports as well as communications between attorneys and experts. Fed.R.Civ.p. 26 advisory committee's note to 2010 amendment (“Rule 26(b)(4)(B) is added to provide work- product protection under Rule 26(b)(3)(A) and (B) for drafts of expert reports and disclosures. . . Rule 26(b)(4)(C) is added to provide work-product protection for attorney-expert communications. . .”). But the protection for attorney-expert communications does not apply to the extent the lawyer and the expert communicate about matters that fall within the three exceptions. Id. Consequently, discovery is permitted to identify facts or data the party's attorney provided to the expert and that the expert considered in forming the opinions to be expressed. Id. Likewise, discovery is permitted as to attorney-expert communications to identify any assumptions that counsel provided to the expert and that the expert relied upon in forming the opinions to be expressed. Id. Additionally, the 2010 amendments to Rule 26 did not alter the definition of “considered.” In re Benicar Products Liab. Lit., 319 F.R.D. 139, 216 n.3 (D. N.J. 2017). As a result, after the 2010 amendments, “theories or mental impressions” might be protected, but everything else is fair game. Yeda Research & Dev. Co., Ltd. v. Abbott GmbH & Co. KG, 292 F.R.D. 97, 105 (D.D.C. 2013).

         Case law has defined the terms “considered” and “relied upon.” The term “considered” is broader than the term “relied upon.” Pertile v. GM. LLC, No. 15 CV 518, 2017 U.S. Dist. LEXIS 141088, at *20 n.9 (D. Colo., Aug. 31, 2017) citing Fid. Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat'l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005); Deal v. Louisiana, No. 11-743, 2013 U.S. Dist. LEXIS 122504, at *14-17 (M.D. La. Aug. 28, 2013). In the context of Rule 26, “considered” is a term of art:

An expert must disclose the materials given to him to review in preparation for testifying, “even if in the end he does not rely on them in formulating his expert opinion, because such materials often contain effective ammunition for cross-examination.” The term “considered” invokes a “broader spectrum of thought than the phrase ‘relied upon' which requires dependence on the information.” . . . While “consider” is to be given a broad meaning, the Seventh Circuit suggests that “considered” applies to that information an expert actively reviews and contemplates, and then chooses not to rely upon.

Allstate Ins. Co. v. Electrolux Home Prods., Inc., 840 F.Supp.2d 1072, 1080 (N.D. Ill. 2012) (citations omitted).

         Likewise the term “relied on” possesses a specific meaning. In this context, “relied upon” means that the expert's opinion depended upon the assumptions provided by the attorney. Pertile v. GM. LLC, 2017 U.S. Dist. LEXIS 141088, at *20 n.9 citing Fid. Nat'l Title Ins. Co., 412 F.3d at 751.

         A. Defendants' Motion to Compel

         At the Plaintiffs' expert deposition, the following colloquy occurred between the Defendants' attorneys, the Plaintiffs' attorneys and the expert, Mr. Libby:

By Mr. Smith [one of the defense counsel]:
Q: Okay. And did you type up this report yourself?
Mr. Slosar [one of the Plaintiffs' counsel]: Objection. I believe that that - obviously you can delve into the report process, but I think that that specific question and the collaboration between Mr. Libby and our firm would delve into the work product privilege.
Mr. Devine [one of the defense counsel]: Well, you just answered the question.
Mr. Smith: Yeah, you just answered the question.
By Mr. Smith:
Q: So you didn't actually type this up yourself, sit there and type ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.