United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. Johnston U.S. Magistrate Judge.
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.
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
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
(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
(i) relate to compensation for the expert's study or
(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,
(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.
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.
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
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).
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
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
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.
Defendants' Motion to Compel
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 ...