McCuistian v. LG Electronics U.S.A., Inc., et al.

Filing 103

ORDER DENYING 83 MOTION for Protective Order And For An Award of Fees And Costs, as further set out in order; directing within 7 days of this order, BRK is ORDERED to produce to the remaining parties all photographs in its custody or control that were taken during the 3/14/2016 inspection. Signed by Honorable Judge Gray M. Borden on 4/27/16. (djy, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD WARREN MCCUISTIAN,
Plaintiff,
v.
LG ELECTRONICS, U.S.A., INC., et al.,
Defendants.

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Case No. 15-cv-279-JA-GMB
[WO]

ORDER
Pending before the court is the Motion for a Protective Order and an Award of Fees
and Costs (Doc. 83) filed by Defendant BRK Brands, Inc. (“BRK”). Plaintiff Richard
Warren McCuistian (“McCuistian), who brought suit as administrator of the estate of Anne
McCuistian, has filed a response to that motion (Doc. 88), and the court held a telephonic
status and scheduling conference regarding the motion on April 25, 2016. Doc. 99. On the
basis of the filings and the representations made during the conference, BRK’s Motion for
a Protective Order and an Award of Fees and Costs is DENIED, as set out below.
I.

BACKGROUND AND PROCEDURAL HISTORY

This lawsuit arises out of a fire that resulted in the death of Anne McCuistian
within her home. Doc. 1 at 6.

The core allegation against BRK is that it manufactured

or sold a smoke detector/alarm that failed to warn Ms. McCuistian of the fire in time to
prevent her death by smoke inhalation. Doc. 1 at 11–13.
An expert witness hired by McCuistian removed the smoke alarm from the home
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and has stored the device at his facility during the course of the litigation. Doc. 83-1 at 2.
At BRK’s request, McCuistian agreed to make the smoke alarm available for an inspection
on March 14, 2016. Doc. 83-1 at 2. BRK’s counsel forwarded a proposed protocol for the
inspection to McCuistian’s counsel on February 25, 2016. Doc. 83-1 at 3. On March 11,
2016, McCuistian’s counsel responded with an email stating in part that he requested “an
agreement . . . [t]hat all photographs and videos taken during the inspection will be
produced within seven days of the inspection.” Doc. 88-2. BRK’s counsel refused this
request, but ultimately agreed to proceed with the inspection as scheduled, reserving the
right to raise BRK’s objections to sharing the photographs by filing a motion for protective
order. Doc. 88-6.1
The inspection did proceed on March 14, 2016, with representatives of all parties
present. Doc. 83-1 at 2. The inspection was destructive in that certain components of the
smoke detector had to be removed to determine who manufactured the device and whether
the alarm sounded during the fire.2 Dr. Lori Streit was hired as a consultant for BRK for

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BRK argues that the timing of McCuistian’s counsel’s email—on the last business day before the
scheduled inspection—evinces a motive to leverage his control of the smoke alarm and to capitalize on the
parties’ sunk transportation costs, and that McCuistian has thereby waived his right to obtain the
photographs through the discovery process. Doc. 83 at 12. The court has been unable to find any authority
for this position, and BRK has cited none. See Doc. 83 at 12. McCuistian’s counsel stated in his response
to the motion for protective order that he did not review the protocol until the evening of March 10, 2016;
only then noticed that there was not a provision for the sharing of the photographs; and raised the issue with
BRK’s counsel the next morning. Doc. 88 at 2. The undersigned has been given no reason to question the
veracity of these representations made by an officer of the court.
2
The proposed protocol contemplates that the inspection will involve destructive activities such as
“delayer[ing] to expose all contents” and the disassembly of certain components. See Doc. 88-1 at 2. The
parties also confirmed the destructive nature of the inspection during the telephonic status and scheduling
conference on April 25, 2016. The full exchange follows:
The Court: There were references in the papers to there having been some sort of
destructive testing or disassembly of the alarm, but then there was another reference to it

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purposes of this litigation, and she attended the inspection on behalf of BRK. Doc. 83-1 at
4. Dr. Streit took a series of photographs during the inspection, including some images
using a microscope. Doc. 83-1 at 2–3. These photographs documented the inspection
process and they do not disclose BRK’s trial strategy or defenses.3 BRK has not shared
Dr. Streit’s photographs with the other parties, and instead filed the pending motion
pursuant to Fed. R. Civ. P. 26(c) to prevent their disclosure unless and until BRK
designates Dr. Streit as a testifying expert witness. Doc. 83-1 at 4. The defendants’ expert
witness designations are due no later than May 20, 2016 (Doc. 98), and BRK has not
designated Dr. Streit as a testifying expert as of this time.
II.

DISCUSSION

Dr. Streit’s photographs fall within the general scope of discovery in that they
depict the allegedly defective smoke alarm and thus bear some relevance to the parties’
claims and defenses. Fed. R. Civ. P. 26(b)(1).

BRK does not dispute this conclusion.

As a result, the photographs must be produced unless BRK can prove that they are work
being in the same condition it was in before the inspection. So was that a destructive
testing of the equipment?
Mr. Hayes: Yes. Well it’s not equipment, its actually the smoke alarm itself. And when
we say it was destructive, what it was . . . was the alarm was badly damaged in the fire to
the point that you certainly couldn’t—without trying to clean it and open it—you could not
determine the identifying information which is really relevant: one, when was it produced
and what model alarm it was; and then also you couldn’t . . . we undertook sonic
deposition, which is to try to see if the alarm sounded, and you had to open up the alarm in
order to get access because of the amount of damage it sustained.
3
The nature of the photographs was also a topic of discussion during the telephonic conference on April 25,
2016:
The Court: Ms. Flax or Mr. Hayes, is there any claim that these photos disclose your trial
strategy or the defenses you’re anticipating at trial, or are these just documenting the
circumstances as they were found during that inspection?
Mr. Hayes: I don’t know that they would disclose trial strategy, but they are highly
technical, or they’re obtained in a highly technical manner, with camera equipment that can
be used through a microscope . . . so there’s microscopic images of the product.

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product. E.g., Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 698 (N.D. Ga. 2007) (“A
party asserting work product protection ‘must show that the materials withheld are: 1)
documents and tangible things; 2) prepared in anticipation of litigation or for trial; and, 3)
the documents or tangible things were prepared by or for the party or the attorney
asserting the privilege.’”) (quoting Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D.
Cal. 2003)).

After careful consideration, the court holds that BRK has not carried that

burden.
Rule 26(b)(3) is a codification of the work-product doctrine derived from Hickman
v. Taylor, 329 U.S. 495 (1946), and applies to materials prepared “by or for another party
or its representative (including the other party’s attorney, consultant, surety, indemnitor,
insurer, or agent).” Fed. R. Civ. P. 26(b)(3).

This list omits any reference to an “expert,”

and
each of the six listed examples connotes someone acting in either an agency
or fiduciary capacity for the “party or its representative.” Clearly, agents
of a party or its representative, who stand in the legal shoes of the party, are
entitled to the same work-product protections as the party itself. No
showing has been made that an expert would have capacity to act on behalf
of a party in this case.
In re Application for Republic of Ecuador, 735 F.3d 1179, 1184 (10th Cir. 2013) (citing
United States v. Nobles, 422 U.S. 225, 238–39 (1975)) (“It is therefore necessary that the
[work-product] doctrine protect material prepared by agents for the attorney as well as
those prepared by the attorney himself.”).

The first question before the court is whether

Rule 26(b)(3) nevertheless covers materials prepared by non-testifying experts.
The Eleventh Circuit considered the closely analogous question of whether Rule
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26(b)(3) applies to testifying experts in Republic of Ecuador v. Hinchee, 741 F.3d 1185,
1190 (2013).

In holding that Rule 26(b)(3) does not apply in that context, the court

noted the absence of any reference to an “expert” in Rule 26(b)(3) despite the term’s
inclusion in Rule 26(b)(4), the 1970 Advisory Committee’s “‘reject[ion] as ill-considered
the decisions which have sought to bring expert information within the work-product
doctrine,’” and the redundancy Rule 26(b)(4) injects into the work-product scheme if
Rule 26(b)(3) covers “all testifying expert materials in general.” Id. at 1190–92.

The

Eleventh Circuit also noted that the primary purpose for the work-product
doctrine—“‘shelter[ing] the mental processes of the attorney’”—breaks down when this
protection is extended to expert witnesses, whose “role is to provide independent,
impartial, qualified opinion testimony helpful to the trier of fact.” Id. at 1192 (quoting
Nobles, 422 U.S. at 227).
This court finds that the Eleventh Circuit’s rationale for reading Rule 26(b)(3) to
exclude testifying experts from blanket work-product protection applies with equal force
to non-testifying experts such as Dr. Streit.4

The Federal Rules of Civil Procedure

plainly contemplate the existence of both testifying experts, see Fed. R. Civ. P.
26(b)(4)(A), and non-testifying experts, see Fed. R. Civ. P. 26(b)(4)(D), but Rule 26(b)(3)

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Consistent with the definition for non-testifying experts set forth in Rule 26(b)(4)(D), Dr. Streit has been
engaged by BRK specifically for assistance with this litigation, but has not been designated as a trial
witness. Of course, Dr. Streit may ultimately become a testifying expert, if designated by BRK, at which
time the discovery of any materials in her possession will fall squarely within the ambit of Republic of
Ecuador and Fed. R. Civ. P. 26(a)(2) and 26(b)(4)(C). In the meantime, there is no basis for a finding that
she is BRK’s “attorney, consultant, surety, indemnitor, insurer, or agent,” Fed. R. Civ. P. 26(b)(3)(A), and
“no showing has been made that [Dr. Streit] would have capacity to act on behalf of [BRK].” In re
Application for Republic of Ecuador, 735 F.3d at 1184.

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makes no reference to either category.

The provisions of Rule 26(b)(4)(D) extending

work-product protection only to facts and opinions of non-testifying experts are just as
inconsistent with an expansive interpretation of Rule 26(b)(3) as are the testifying expert
provisions of Rule 26(b)(4)(C).

This conclusion is buttressed by BRK’s admission that

the photographs at issue do not disclose its trial strategy or defenses, further eroding any
reliance on a doctrine intended to safeguard an attorney’s “mental impressions,
conclusions, opinions, or legal theories.” Fed. R. Civ. P. 26(b)(3)(B); see also Cox v.
Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994), opinion modified on
reh’g, 30 F.3d 1347 (11th Cir. 1994).
Rule 26(b)(3)’s inapplicability does not end the court’s analysis, as BRK also
relies on Rule 26(b)(4)(D):
Ordinarily, a party may not, by interrogatories or deposition, discover facts
known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial. But a party may
do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.
Fed. R. Civ. P. 26(b)(4)(D).

While this protection extends to Dr. Streit as a

non-testifying expert witness, Rule 26(b)(4)(D) does not prohibit the discovery of her
photographs.

This is because the court has found no authority in this Circuit for the

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proposition that a request for production of documents and things5 that do not disclose
opinions or trial strategy is equivalent to a Rule 26(b)(4)(D) request for “facts known or
opinions held” by an expert witness through “interrogatories or deposition.”

With no

binding authority directly on point, the undersigned declines to adopt this new rule of law
for the reasons stated below.
There is limited authority for this position even outside of the Eleventh Circuit.
BRK directs the court to U.S. Inspection Servs., Inc. v. NL Eng’d Sols., LLC, 268 F.R.D.
614, 617 n.3 (N.D. Cal. 2010), which points to Plymovent Corp. v. Air Tech. Sols., Inc.,
243 F.R.D. 139 (D.N.J. 2007), for the holding that district courts should ignore Rule
26(b)(4)(D)’s “interrogatories or deposition” language to prevent “an end run around the
policies of the rule.” Id. at 144.

Despite an appreciation for the pragmatism of these

rulings, this court is not willing to set aside the plain language of Rule 26(b)(4)(D) purely
for policy reasons, particularly when the Eleventh Circuit has so recently cautioned lower
courts to avoid constructions that render superfluous any portion of this very rule. See
Republic of Ecuador, 741 F.3d at 1191 (citing United States v. Aldrich, 566 F.3d 976, 978
(11th Cir. 2009); Bouchard Transp. Co. v. Updegraff, 147 F.3d 1344, 1351 (11th Cir.

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As noted above, McCuistian requested the photographs by email, rather than by propounding a Request
for Production strictly in the form contemplated by Rule 34. See Fed. R. Civ. P. 34(b)(1) (setting out the
required contents of a Rule 34 request). Even so, BRK has treated the email as a valid Rule 34 request, as
evidenced by its filing of the pending motion for a protective order. For present purposes, the substance of
the email and the parties’ treatment of it compel the court to accept it as a Rule 34 request for documents or
things even if it may not satisfy the technical requirements of Rule 34. Perhaps more to the point, by any
reasonable interpretation the email is not a deposition request or an interrogatory pursuant to Fed. R. Civ. P.
33.

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1998)).6
Rule 26(b)(4) extends work-product protection only to limited classes of expert
witness information. See, e.g., Republic of Ecuador, 471 F.3d at 1190–91.

Even

assuming McCuistian’s request for the photographs reaches “facts known or opinions
held” by Dr. Streit, it was not made through “interrogatories or deposition.” Fed. R. Civ.
P. 26(b)(4)(D).

As a result, the request does not fall within one of the categories

described in the rule, and this court will not disregard the rule’s plain language simply
because certain policy arguments favor the protection of other materials.

The fact that

these photographs run no risk of disclosing trial strategy underscores this holding.

As

with Rule 26(b)(3), an expansive reading of Rule 26(b)(4)(D) implicates countervailing
policy concerns by expanding the work-product doctrine to documents with more
attenuated connections to the attorney’s mental impressions. See, e.g., id. at 1192 (noting
this “core” purpose).

It is true that the 1993 Advisory Committee did not explain its

rationale for the “interrogatories or deposition” limitation in Rule 26(b)(4)(D). See Fed.
R. Civ. P. 26(b), Advisory Comm. Note (1993) (discussing amendments to Rule 26(b)(4)
without mentioning this language); Hartford Fire Ins. Co. v. Pure Air Lake Ltd. P’ship,
154 F.R.D. 202, 206 (N.D. Ind. 1993) (noting the 1993 amendment while reserving ruling
on its meaning because of overlapping interrogatories).
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Yet the contours of the

In independent research, this court found one case in which a lower court within the Eleventh Circuit
assumed, without deciding, that Rule 24(b)(4)(D) could cover document requests, but that opinion
pre-dated Republic of Ecuador and apparently the parties did not raise the “interrogatories or deposition”
limitation. See U.S. ex rel. Civil Const. Techs., Inc. v. Hanover Ins. Co., 2013 WL 1810817, at *2–*4 (M.D.
Fla. 2013) (overruling a Rule 26(b)(4)(D) objection to a third-party subpoena seeking the deposition of a
non-testifying expert and ten categories of documents without addressing the “interrogatories or
deposition” limitation).

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work-product doctrine have always been defined by the form of the requested
information. See, e.g., Fed. R. Civ. P. 26(b)(3)(A) (protecting only “documents and
tangible things”).

Even the 1970 Advisory Committee, who first recommended

codification of the work-product doctrine, cautioned that “[n]o change is made in the
existing doctrine, noted in the Hickman case, that one party may discover relevant facts
known or available to the other party, even though such facts are contained in a document
which is not itself discoverable.” Fed. R. Civ. P. 26(b)(3), Advisory Comm. Note (1970);
see Joyner v. Cont’l Ins. Cos., 101 F.R.D. 414, 415 (S.D. Ga. 1983) (“Rule 26(b)(3) was
adopted in 1970 to codify the holding in Hickman . . . .”).

The court finds no basis to

break with precedent by reading out of Rule 26(b)(4)(D) the very same distinction.

For

these reasons, the court holds that BRK has not carried its burden of proving that Rule
26(b)(4)(D) prohibits the production of Dr. Streit’s photographs of the allegedly defective
smoke alarm.7
III.

CONCLUSION

Accordingly, it is ORDERED that BRK’s Motion for a Protective Order and an
Award of Fees and Costs (Doc. 83) is hereby DENIED, as further set out above. Within
seven (7) days of this Order, BRK is ORDERED to produce to the remaining parties all
7

Although not essential to the resolution of the pending motion, the court would have found exceptional
circumstances justifying production of the photographs even if Rule 24(b)(4)(D) covered them. This is
because McCuistian cannot now obtain comparable documentation of the condition of the smoke detector
following the parties’ destructive testing. However, McCuistian certainly had the opportunity to take
microscopic photographs either before or during the destructive testing. While the court would have
ordered the production to prevent information asymmetry and the type of surprise at trial the discovery rules
are designed to avoid, it would have ordered McCuistian to absorb half of BRK’s costs in obtaining the
photographs. Because the court instead finds that Rule 24(b)(4)(D)’s protections do not attach to the
subject photographs, it is without a basis upon which to shift BRK’s costs.

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photographs in its custody or control that were taken during the March 14, 2016 inspection.
DONE this 27th day of April, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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