B.M.I. Interior Yacht Refinishing, Inc. et al v. M/Y Claire
Filing
311
ORDER FOLLOWING INFORMAL DISCOVERY HEARING. Signed by Magistrate Judge Andrea M. Simonton on 7/15/2015. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62676-CIV-WILLIAMS/SIMONTON
B.M.I. INTERIOR YACHT REFINISHING,
INC., et al.,
Plaintiffs,
v.
M/Y CLAIRE,
Defendant.
/
ORDER FOLLOWING INFORMAL DISCOVERY HEARING
This matter was before the undersigned Magistrate Judge upon Intervenor
Plaintiff Nautical Specialists, Inc.’s Notice of Hearing Regarding Inspection of Vessel,
ECF No. [230]. Discovery is referred to the undersigned by the Honorable Kathleen M.
Williams, the District Judge assigned to the case, ECF No. [86]. An informal discovery
hearing was held on the dispute wherein the Parties presented their respective
arguments. The undersigned directed the Defendant to submit the document at issue to
the undersigned for an in camera review and took the matter under advisement.
For the following reasons, and based upon a review of the document, the
undersigned orders that on or before July 22, 2015, Defendant M/Y Claire shall disclose
certain data contained in the September 13, 2013 Report authored by Guy Clifford to
Plaintiff Nautical Specialists, Inc., as set forth below in this Order.
I.
DISCOVERY DISPUTE
A.
Background
The instant dispute involves Nautical Specialist’s Inc.’s (“Nautical”) request to
compel Defendant M/Y Claire and Turbulent Marine (“M/Y Claire”) to produce an expert
report and expert correspondence in response to Nautical’s Request for Production.1
According to the Notice of Hearing, M/Y Claire objected to producing certain documents
requested by Nautical on the basis of the work product doctrine, ECF No. [230]. The
documents at issue are identified in M/Y Claire’s privilege log as reports from Guy
Clifford (GC) to Defendant’s Attorneys. The Privilege Log indicates that the materials are
withheld based upon Work Product protection (WP) and Expert Trial Preparation (TP).
September 2013 Report Prepared by Guy Clifford
At the discovery hearing on the issue, Nautical explained that in August 2013, Guy
Clifford, a surveyor from Patton Marine, was asked by the owner of M/Y Claire to inspect
and survey the vesselregarding work that had been performed by various contractors.
Plaintiff Nautical was the contractor that performed work on the M/Y Claire’s air
conditioning system. At Mr. Clifford’s request, Rob Miles, the owner of Nautical,
accompanied Mr. Clifford during the inspection. Upon completion of the survey report of
the inspection (“Clifford Report”), Mr. Clifford purportedly gave the report to the captain
of the M/Y Claire, Captain Howard. Plaintiff Nautical contends that Captain Howard
thereafter read that report to Mr. Miles over the telephone.
October 2014 Report Prepared by Steve Marshall
According to Nautical, after the first inspection, in October of 2014, at the request
of Mr. Clifford, Steve Marshall, another surveyor from Patton Marine, performed a second
1
This maritime lien foreclosure matter was commenced on December 10, 2013,
when Plaintiffs B.M.I. Interior Yacht Refinishing, Inc., BMC Services, Inc., F & J. Yacht
Detailing, Inc., and Professional Tank Cleaning, Inc., filed a Verified Complaint against in
rem Defendant M/Y Claire alleging that the owner of the vessel, Turbulent Marine, Ltd.,
failed to pay sums due to Plaintiffs for work performed on the vessel, ECF No. [1]. On
December 27, 2013, the Court granted Nautical Specialists, Inc.’s Motion to Intervene,
which sought intervention based upon Nautical’s contention that it was owed money
from the M/Y Claire for work performed on the vessel, ECF No. [6].
2
survey of the M/Y Claire related to items that were not working on the vessel. Nautical
contends that Mr. Clifford accompanied Mr. Marshall on that inspection and assisted in
preparing the second report of the vessel. On November 26, 2014, Mr. Marshall issued
his report wherein, among other things, he reviewed and evaluated the labor and
materials supplied by Plaintiff Nautical, as well as the invoices submitted by Nautical for
such work, ECF No. [166-1]. Mr. Marshall has been designated by the M/Y Claire as its
testifying expert witness, and his expert report has been disclosed.
B.
Plaintiff Nautical’s Motion to Compel
Nautical now seeks to compel Defendant M/Y Claire to provide the entire report
originally prepared by Mr. Clifford on two grounds. First, Nautical contends that the
Defendant waived its right to not disclose that report under the work product doctrine
when Captain Howard read portions of that report to Rob Miles, the agent of Nautical.
Second, Nautical contends that because Mr. Clifford aided Mr. Marshall in the second
survey of the vessel, Nautical is entitled to obtain Mr. Clifford’s first report because the
conclusions reached in that report formed, in part, the basis for Mr. Marshall’s report.
Nautical contends that it is in need of the Report at issue because Mr. Marshall’s
November 2014 report that was produced to Nautical only reflects temperature readings
related to the air conditioner for cooler months of November and December, rather than
those set forth in Mr. Clifford’s September 2013 Report which captured temperature
readings for the presumably warmer month of August.
At the hearing on the issue, Nautical argued that because the Report was created
prior to the contemplation of litigation against Nautical, the Report was not work product
protected. In addition, Nautical argued that it was inequitable to allow Guy Clifford to
rely on assistance from Nautical to conduct his inspection and then not allow Nautical to
3
view the Report. Finally, Nautical noted that it intended to call Guy Clifford at trial as an
expert as to whether the air conditioning system was working properly at the time that
Mr. Clifford inspected that system.
In response to Nautical’s request to compel production of Mr. Clifford’s Report,
the Defendant contended that Nautical had failed to establish that any exception to the
work product rule existed under the facts of this case. Defendant further argued that the
information sought by Nautical was available from other sources and contended that
seeking the information for purposes of impeachment was insufficient to overcome work
product protection. As to the question of whether Mr. Clifford’s Report was prepared in
anticipation of litigation, at the hearing, Counsel for M/Y Claire asserted that the Mr.
Clifford’s inspection and subsequent Report were undertaken at the request of M/Y
Claire’s Counsel to determine deficiencies in the work not paid for by the vessel’s
owner.
For the following reasons, following an in camera review of the Report, the
undersigned concludes that, although M/Y Claire did not waive the work product
protection of Mr. Clifford’s Report or correspondence related, thereto, Plaintiff Nautical
has demonstrated exceptional circumstances necessary to obtain a portion of the facts
contained in that Report.
II.
LAW AND ANALYSIS
A.
Work Product Doctrine
The work-product doctrine prohibits unwarranted inquiries into the materials and
opinions of an attorney and “reflects the strong ‘public policy underlying the orderly
prosecution and defense of legal claims.’” United Kingdom v. United States, 238 F.3d
1312, 1321 (11th Cir. 2001), quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947). The
4
rationale for the doctrine is the belief that “the privacy of an attorney's course of
preparation is ... essential to an orderly working of our system of legal procedure.”
Hickman, at 512. Thus, an attorney must be able to prepare cases without fear that
work-product, as reflected in “interviews, statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs, and countless other tangible and intangible
ways,” will be used by the attorney’s client's adversaries. Id., at 511.
This doctrine has been codified in Federal Rule of Civil Procedure 26, which
provides that “[o]rdinarily, a party may not discover documents and tangible things that
are prepared in anticipation of litigation or for trial 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)(A) (emphasis added).
In addition, as pertains to discovery of expert materials, Rule 26 (b) (4) provides:
(4) Trial Preparation: Experts.
....
(C) Trial-Preparation Protection for Communications Between a Party's
Attorney and Expert Witnesses. 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 and 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.
(D) Expert Employed Only for Trial Preparation. 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:
5
(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)(C) and (D). The party asserting the work-product doctrine as a
bar to discovery has the burden of establishing that the doctrine is applicable to the
particular materials at issue. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th
Cir. 2013).
B.
The Report at Issue is Work Product Protected
As set forth above, Rule 26 requires that, in order for materials to be work product
protected, the party asserting such protection bears the burden of demonstrating that
the documents were prepared in anticipation of litigation. To the extent that Nautical
argues that it is questionable whether the Clifford Report was prepared in anticipation of
litigation because the Report was completed in September 2013, prior to the
commencement of this action in December of 2013, that argument fails.
At the outset, the undersigned notes that, generally, courts apply two different
tests to determine whether a document is prepared in “anticipation of litigation”: the
“primary purpose” test, i.e., the primary motivating purpose behind the creation of the
document was to aid in possible litigation, or the “because of” test, i.e., it can be fairly
said that the document was prepared or obtained because of the prospect of litigation.2
Under the facts of this case, the record supports a finding that Mr. Clifford’s Report
2
See e.g. Tillman v. C.R. Bard, Inc., No. 3:13-cv-222-J-34JBT, 2015 WL 1062182, at
*2 (M.D. Fla. March 11, 2015) (discussing difference in “primary purpose” test set forth in
United States v. Davis, 636 F. 2d 1028, 1040 (5th Cir. Unit A Feb. 1981) and “because of”
test discussed in Milanazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698 (S.D. Fla. 2007) as
those tests are applied in determining whether a document is prepared in anticipation of
litigation).
6
satisfies both tests.
First, in the original Complaint, the Plaintiffs alleged that sometime at the end of
July or the beginning of August 2013, counsel for the Plaintiffs started receiving
numerous telephone calls from various contractors inquiring about their rights and
remedies in the event a vessel owner refused to pay his bills, ECF No. [1] at 2. The
Complaint further alleges that on August 26, 2013, Turbulent, the owner of the M/Y
Claire, sent out form letters to marine contractors disputing their bills and, on August 27,
2013, Turbulent filed six lawsuits against six contractors to contest their invoices, ECF
No. [1] at 3. Thus, it is evident from the Complaint that litigation involving the work
performed on the M/Y Claire was contemplated, and in fact initiated, well before the
instant action was filed and at the time that the Clifford Report was prepared. This
conclusion is not altered by the fact that, at the time the Report was created, Nautical did
not believe that litigation would ensue between M/Y Claire and Nautical, because it is
clear from the Report that the survey was conducted as to many, if not all, of the
contractors who had performed work on the M/Y Claire for purposes of determining
whether litigation would ensue or to assist in preparing for potential litigation, including
Nautical.
Second, at the hearing on this issue, as stated above, Counsel for M/Y Claire
asserted that Mr. Clifford’s inspection and subsequent Report were undertaken at the
request of M/Y Claire’s Counsel to determine deficiencies in the work not paid for by the
vessel’s owner. This contention is consistent with the undersigned’s in camera
inspection of the Report. In particular, the Report, prepared by Guy Clifford and directed
to Merle Wood, consists of a twenty-eight page single-spaced survey of work performed
by various contractors on the M/Y Claire. The Report references certain invoices
7
submitted by the contractors, describes the work performed by the contractors and sets
forth Mr. Clifford’s opinions regarding that work. Three of the pages specifically pertain
to work performed by Plaintiff Nautical, and include Mr. Clifford’s evaluation of that
work. A portion of that evaluation includes a chart which reflects temperatures taken at
various locations on the M/Y Claire by the crew of that vessel. Based upon this review,
the undersigned concludes that the primary motivating purpose behind the creation of
the Report was to aid in possible litigation, and it can also be fairly said that the
document was prepared or obtained because of the prospect of litigation. Thus, the
document satisfies both “anticipation of litigation” tests.
Further, although generally documents created in the ordinary course of business
do not enjoy work product protection because they are not prepared in anticipation of
litigation, there is no evidence that the Report was created for any reason other than in
anticipation of litigation. There is absolutely no evidence that the M/Y Claire regularly
hired marine surveyors to evaluate work performed on the vessel as part of its ordinary
course of business. As such, the undersigned concludes that Mr. Clifford’s report is
protected from disclosure under the work product doctrine because it was created in
anticipation of litigation.
C.
Waiver of Work Product Materials
Having determined that the Report at issue is entitled to work product protection,
the undersigned now turns to each of the arguments advanced by the Plaintiff Nautical
as the basis for overcoming that protection. First, as stated above, Nautical contends
that it is entitled to production of the Clifford Report because Defendant waived any
work product protection of that document by orally disclosing it to an agent of Nautical,
Rob Miles.
8
“Waiver” is the intentional relinquishment of a known right. Allapattach Services,
Inc. v. Exxon Corp., 188 F.R.D. 667, 681 (S.D. Fla. 1999). The case law makes clear that a
party can waive work-product protection. United Steelworkers of America, AFL–CIO–CLC
v. Ivaco, Inc., No. 1:01-CV-0426-CAP, 2002 WL 31932875, at *5 (N.D. Ga. Jan. 13, 2003)
(citing United States v. Nobles, 422 U.S. 225, 239 (1975)). Voluntary disclosure to an
adversary waives the protection of the attorney work product doctrine as to the items
disclosed. United Steelworkers of America, 2002 WL 31932875, at *5. (citations omitted).
Further, although the party seeking work product protection bears the initial burden for
establishing that the documents are entitled to such protection, after that initial burden
is met, the burden shifts to the party asserting waiver, to show that the party claiming
the privilege has waived its right to do so. Mitsui Sumitomo Ins., Co. v. Carbel, LLC, No.
09-21208-CIV, 2011 WL 2682958, at *3 (S.D. Fla. July 11, 2011) (citing Rhoads Indus. v.
Bldg. Materials Corp. of Am., 254 F.R.D. 216, 223 (E.D. Pa. 2008)).
For the following reasons, the undersigned concludes that the Defendant has not
waived the work product protection for the Clifford Report. First, work-product
protection of materials may be asserted by either the attorney or the client, and each can
waive that immunity, but only as to him or herself, as both the attorney and the client
benefit from the privilege. United Steelworkers of America, AFL–CIO–CLC v. Ivaco, Inc.,
No. 1:01-CV-0426-CAP, 2002 WL 31932875, at *6 (N.D. Ga. Jan. 13, 2003). Indeed, an
attorney has an independent interest in privacy of his or her work product, even when
the client has waived its own claim, as long as invoking the privilege would not harm the
client's interests. Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006) (citing Restatement
(Third) of the Law Governing Lawyers § 90 cmt. c (2000)). In this case, it is undisputed
that the M/Y Claire’s Captain, and not M/Y Claire’s Counsel, orally disclosed Mr.
9
Clifford’s Report to Nautical by reading portions of that Report to Rob Miles. As such,
Defendant M/Y Claire partially waived the work product protection as to itself but did not
do so on behalf of M/Y Claire’s Counsel. This distinction is particularly appropriate
under the facts of this case where Counsel for M/Y Claire contends that Mr. Clifford’s
inspection and subsequent Report were undertaken at the request of M/Y Claire’s
Counsel to determine deficiencies in the work not paid for by the vessel’s owner.
Counsel for M/Y Claire has a privacy interest in the work product information and
opinions that were generated at Counsel’s direction, and that interest does not conflict
with interests of M/Y Claire. As such, Captain Howard did not and could not legally
waive Counsel for M/Y Claire’s work product protection for the Clifford Report.
Second, even if M/Y Claire or its agent were able to waive work product protection
of the Clifford Report on behalf of M/Y Claire’s Counsel, under the facts of this case, that
waiver would be limited to the specific oral disclosures made by Captain Howard, and
would not require disclosure of the entire Report. On this point, although the Defendant
does not dispute that Captain Howard voluntarily disclosed the Report to Mr. Miles and
that the disclosure was not inadvertent, neither the Plaintiff nor the Defendant have been
able to inform the Court whether the entire Report was orally communicated to Mr. Miles,
or if only portions of that Report were disclosed, and if so, which portions. At the
hearing, although Plaintiff asserted that Captain Howard read the Report to Mr. Miles
over the telephone, Plaintiff’s Counsel represented that Mr. Miles was unable to recall
what he was told the Report said, other than concluding that Mr. Miles “didn’t have
anything to worry about” with respect to the work Nautical performed on the vessel.
Although Mr. Miles had been deposed prior to the hearing, neither Party provided the
Court with a transcript of his testimony on this issue. In addition, neither Party deposed
10
Captain Howard or obtained an affidavit or other statement from him regarding what he
orally disclosed to Mr. Miles regarding the Report.2 Plaintiff Nautical has therefore failed
to meet its burden in establishing that the entire Clifford Report was disclosed by the
Defendant to Nautical, thereby waiving the work product protection as to the entire
document.
Despite the Plaintiff’s failure to establish that the whole of the Clifford Report was
read to Mr. Miles, Plaintiff seeks to have the entirety of that Report disclosed. In
essence, Nautical claims that by orally disclosing some or any portion of Guy Clifford’s
Report, the work product protection has been destroyed as to the entire Report.
However, courts have held that due to the sensitive nature of work product materials and
the policy behind maintaining their secrecy, generally speaking, when work product
protection has been waived, it is limited to the information actually disclosed. Howard v.
O’Quinn, 253 F.R.D. 663, 683 (S.D. Fla. 2008).3 Accord, Chick–fil–A v. Exxon Mobil Corp.,
2
Further, based upon the undersigned’s in camera review of the Report and Mr.
Miles’ statements regarding Captain Howard’s disclosure, the undersigned concludes
that it is more likely than not that only portions of the Report were orally disclosed by
Captain Howard. This conclusion is based, in part, on the fact that a portion of the
Report contains a six-column chart that reflects various temperature readings taken
aboard the vessel. Given that Mr. Miles did not recollect generally that those readings
had been disclosed to him, it seems improbable that Captain Howard specifically read
those readings to him, and thus did not disclose the entirety of the Report to Nautical.
3
Also, Federal Rule of Evidence 502, Subdivision (a) provides that a voluntary
disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally
results in a waiver only of the communication or information disclosed. The Committee
Advisory notes for Rule 502 provide, inter alia, that a subject matter waiver (of either
privilege or work product) is reserved for those unusual situations in which fairness
requires a further disclosure of related, protected information, in order to prevent a
selective and misleading presentation of evidence to the disadvantage of the adversary.
See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D.
307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed,
because the party did not deliberately disclose documents in an attempt to gain a
tactical advantage). Thus, subject matter waiver is limited to situations in which a party
intentionally puts protected information into the litigation in a selective, misleading and
11
2009 WL 3763032, No. 08–61422–CIV, at *3 (S.D. Fla. Nov. 10, 2009) (citations omitted)
(“[T]he overwhelming majority of persuasive authority from other circuits holds that
voluntary disclosure of work product information to an adversary waives work product
protection as to that information.”); Accord Murray v, Southern Route Maritime, No. c121854RSL, 2014 WL 1671581, at *3 (W.D. Wash. April 28, 2014) (holding that while a party
cannot shield the material which it has already disclosed, where the disclosure is
limited, the waiver applies only to the matters disclosed.)
This limitation is particularly adhered to where the disclosure at issue pertains to
work product held or created by a nontestifying expert, as in this case. As stated in
Hollinger Intern. Inc. v. Hollinger Inc., 230 F.R.D. 508, 522 (N.D.Ill. 2005), “[C]ourts have
generally held that partial disclosure of a non-testifying expert's work product does not
waive a party's right to withhold production of the expert's undisclosed work product.”
Id. (internal citations omitted). Thus, even where a court finds that a party waived
protections afforded to non testifying experts, the waiver may be limited in scope.
Precision of New Hampton Inc. v. Tri Component Prods. Corp., No. C12–2020, 2013 WL
unfair manner.
In this case, there is no indication that the Defendant has unfairly used the
Clifford Report in a manner that warrants a finding that the work product protection has
been waived as to the Report. Rather, the fact that the Plaintiff contends that the
opinions in the Report may be contrary to the position taken in this litigation is
insufficient to establish that it would be “unfair” to permit the Defendant to refuse to
disclose the Report based upon work product protection. See, e.g., Carr v. C.R. Bard,
297 F.R.D. 328 (N.D. Ohio 2014) (stating “it is one thing to argue that a waiver might be
appropriate if a party's insistence on work product protection would be ‘unfair’ because
of some action that party has taken with respect to the protected material . . . and quite
another to argue that work product protection is waived if the protected materials tend
to undermine an affirmative defense.) (citation omitted). See also, In re von Bulow, 828
F.2d 94, 101 (2d Cir. 1987) (explaining that implied waiver “aim[s] to prevent prejudice to
a party and distortion of the judicial process that may be caused by the privilege-holder's
selective disclosure during litigation of otherwise privileged information”).
12
2444047, at *6 (N.D. Iowa, June 5, 2013).4
As discussed above, the only portion of the Clifford Report that the Plaintiff has
established was disclosed to Nautical was done so through the oral statements uttered
by Captain Howard to Robert Miles which summarized the Clifford Report. By Mr. Miles’
own statements, the oral summary provided by Captain Howard in this matter was not
very detailed but rather generally consisted of informing Mr. Miles that Nautical had
nothing to worry about based on the Report. Such disclosure does not rise to the level
of a waiver of work product protection as to the written Report itself. In this regard, this
case is distinguishable from Securities and Exchange Comm. v. Vitesse Semiconductor
Corp., No. 10 CIV 9239(JSR), 2011 WL 2899082, at` *1 (S.D.N.Y. July 14, 2011), wherein
the Court held that oral summaries of work product protected documents that were
intentionally disclosed were sufficiently detailed to constitute a waiver of work product
protection. In fact, in the Vitesse case, the Court noted that waiver of work product
protection probably would not apply if the party seeking work product protection had
merely provided general impressions of the written interviews without organizing the
presentations in a very specific fashion. Id. at *3. Accord, Hollinger Intern. Inc., v.
Hollinger Inc., 230 F.R.D. 508, 521-22 (N.D. Ill. 2005) (rejecting argument that disclosure
of portions of a non-testifying expert’s report constituted a waiver of work product
4
The undersigned notes that, as observed in Murray v. Southern Route Maritime,
S.A., No. C12–1854RSL, 2014 WL 1671581, at *1–3 (W.D. Wash. April 28, 2014), a number
of courts have questioned whether the non-testifying expert privilege under Rule
26(b)(4)(B), can ever be waived. See Id. (collecting cases addressing waiver in context of
non-testifying expert disclosure). However, based on the facts of this case, the
undersigned need not reach the issue that if the facts known or opinions held by a
non-testifying expert are intentionally disclosed or used in a way that is contrary to the
purpose of the privilege, whether waiver may apply, as the undersigned finds that the
Defendant did not waive the work product protection of the Clifford Report.
13
protection as to the entire report).5 In other words, the extent of the Defendant’s waiver
of any work product protection for the Clifford Report was complete upon the oral
disclosure by Captain Howard, and does not require the additional disclosure of the
entire written Report that was summarized by Captain Howard. This conclusion makes
sense in light of the purpose of the work product privilege to “promote[] the adversary
system directly by protecting the confidentiality of papers prepared by or on behalf of
attorneys in anticipation of litigation.” Westinghouse Elec. Corp. v. Republic of the Phil.,
951 F.2d 1414, 1428 (3d Cir. 1991) (citations omitted).
In addition, to the extent that Nautical requests production of Guy Clifford’s
correspondence based on waiver, any such waiver does not open the door to disclosure
of all materials or information related to the subject matter of the Report. See Duplan
Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222–23 (4th Cir. 1976) (finding that subject
matter waiver does not apply to work product protected materials where disclosure was
inadvertent or partial and where no testimonial use was made of the work product);
Epstein, The Attorney–Client Privilege and the Work Product Doctrine 1116 (2007)
(“disclosure of some work-product materials does not thereby necessarily constitute a
5
In Hollinger, the court found that when the plaintiff disclosed part of its expert's
findings, it only waived the protections of Rule 26(b)(4)(B) as to the items actually
disclosed. Id. The court stated that the partial disclosure of the non-testifying expert's
findings “did not automatically forfeit the protection of Rule 26(b)(4)(B) as to the
withheld information or place the entirety of his work at issue.” Id. at 522. In so doing,
the court in Hollinger stated, “Rule 26(b)(4)(B) is designed to promote fairness by
precluding unreasonable access to an opposing party's diligent trial preparation.” Id. at
519 (citing Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir.1984)). Thus, “[t]he party
seeking discovery from nontestifying retained experts faces a heavy burden.” Id. (citing
8 Wright, Miller & Marcus, Federal Practice and Procedure § 2032 (2d ed.1994)). The
court thus concluded that work product protection had not been waived by the partial
disclosure and held that the party seeking disclosure would have to establish the
exceptional circumstances required by the applicable Federal Rule 26 (b)(4)(B),
pertaining to seeking discovery from nontestifying experts.
14
waiver permitting discovery of all work product prepared in the same litigation.”). In
United Steelworkers of America, AFL–CIO–CLC v. Ivaco, Inc., 2002 WL 31932875, *1 (N.D.
Ga. Jan. 13, 2003), for example, the court determined that voluntary disclosure of a letter
that otherwise would have been protected by the work-product doctrine, waived any
such protection for the letter itself. In so finding, the court explained that voluntary
disclosure to an adversary waives the protection of the work-product doctrine to the
items disclosed. Id. at *5 (citing In re Howardhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir.
1993); In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846
(8th Cir. 1988)). The court noted however, that “disclosure of some documents generally
does not destroy work-product protection for other documents relating to the same
subject matter.” United Steelworkers, 2002 WL 31932875 at *5 (citing Pittman v. Frazer,
129 F.3d 983, 988 (8th Cir. 1997)). Thus, the court concluded, even if plaintiffs waived
work-product protection, the waiver did not extend beyond that letter itself. Id. at *5.
Accordingly, even if the Court found that Captain Howard’s oral disclosure of a
portion of the Clifford Report resulted in a partial waiver of the work product doctrine,
such a waiver does not extend beyond the specific oral disclosures, and such
disclosures do not require that the entire Report or other documents and
correspondence related to the Report be disclosed to Plaintiff Nautical.
D.
Plaintiff Nautical is Not Entitled to the Clifford Report Because That
Report Did Not Provide the Facts, Data or Assumptions Considered
by Mr. Marshall
Similarly, Nautical is not entitled to the Clifford Report based upon Nautical’s
contention that Steve Marshall, another surveyor from Patton Marine, relied upon that
Report in drafting his own expert Report. This is so because the record belies Nautical’s
contention that Mr. Marshall relied on the Clifford Report or Mr. Clifford’s facts or
15
opinions in reaching his own conclusions or in drafting his own report. Rather, in the
November 26, 2014 Report, Mr. Marshall notes that the judgments, conclusions and
recommendations in the Report are expressions of Mr. Marshall’s opinions and are
based on his skill, training and experience after a routine visual examination of the
vessel’s systems and discussions with owners, crew and others familiar with the vessel,
ECF No. [166-1] at 13. In addition, the Report states that the reported measurements and
capacities were obtained from the vessel’s/yacht’s papers/documentation and/or from
other published sources. Id. Further, at the hearing, the Plaintiff conceded that Mr.
Marshall has represented that he has not seen Mr. Clifford’s earlier report. Accordingly,
there is no evidence in the record that Mr. Clifford’s September 17, 2013 Report was
considered by Mr. Marshall in crafting his Report or in arriving at his opinions,
conclusions, recommendations or judgments. As such the Plaintiff is not entitled to Mr.
Clifford’s Report based upon the assertion that Mr. Marshall relied upon that Report in
arriving at his opinions.
E.
Plaintiff Nautical is Only Entitled to Portions of Guy Clifford’s Report
as a Non-Testifying Expert
Finally, the Parties do not dispute that Mr. Clifford is an expert who has not been
designated as a testifying expert by the Defendant.6 As set forth above, pursuant to Rule
26 (b)(4)(D), typically, the facts known or opinions held by an expert, who is retained by a
party only for trial preparation and not for purposes of testifying, are not discoverable
absent a showing of exceptional circumstances and where it is impracticable for the
6
The undersigned notes that Mr. Guy Clifford has been listed on Nautical’s
Amended Witness List as a fact witness who will testify “regarding his observations
inspections and opinions regarding the 320,000 BTU chilled water system installed by
Nautical aboard the M/Y Claire.” ECF No. 294 at 4. The undersigned expresses no
opinion regarding testimony by Mr. Clifford.
16
party to otherwise obtain facts or opinions. Generally, parties seeking to show
exceptional circumstances under Rule 26(b)(4)(B) carry a heavy burden. Spirit Master
Funding, LLC, v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684 (N.D. Ga. 2012)
(citations omitted). As stated by the Court in Cooper v. Meridian Yachts, Ltd., No. 0661630-CIV, 2008 WL 2229552, *5 (S.D. Fla. May 28, 2008),
Courts considering the applicability of the “exceptional
circumstances” exception to the protections of Rule
26(b)(4)(B) have repeatedly held that the existence of either
of two situations warrants the imposition of the exception:
(1) the object or condition observed by the non-testifying
expert is no longer observable by an expert of the party
seeking discovery, or (2) although it is possible to replicate
expert discovery on a contested issue, the cost of doing so is
“judicially prohibitive.”7
Id. at *5 (collecting cases).
Based upon the facts presented at the hearing in the case sub judice, the
undersigned concludes that Nautical has demonstrated the exceptional circumstances
necessary to overcome the work product protection afforded to non-testifying experts,
as to limited aspects of Mr. Clifford’s Report. Specifically, Nautical contends that it is in
need of Clifford’s Report so that it may obtain information regarding temperature
readings of the yacht taken in warmer weather. Nautical asserts that such information is
necessary to determine if the air conditioning system was working during the summer
months, after Nautical had completed work on the system.
As stated above, a portion of the Clifford Report includes a chart which reflects
temperatures taken at various locations on the M/Y Claire by the crew of that vessel. The
temperature readings themselves appear to be factual in nature and thus do not reveal
7
Former Rule 26(b)(4)(B) was renumbered 26(b)(4)(D) in the 2010 Amendments to
the Federal Rules of Civil Procedure.
17
any opinion work product of either Mr. Clifford or Counsel for the M/Y Claire. While it is
not entirely clear if the temperature readings taken in September as reflected in the
Clifford Report vary greatly from those taken in November by Mr. Marshall, and whether
any variance in those temperatures is of great significance in this case, it does appear
that Nautical is unable to obtain those readings from another source. Thus, the object or
condition observed by the non-testifying expert is no longer observable by an expert of
the party seeking discovery. As such, although it is somewhat of a close call, the
undersigned finds that Nautical has demonstrated that exceptional circumstances exist
to warrant disclosure of the temperature readings from the M/Y Claire contained in Mr.
Clifford’s Report.
As to the other information contained in the Report, except for the temperature
readings discussed above, the Plaintiff has failed to demonstrate the exceptional
circumstances necessary to overcome the work product privilege for non-testifying
experts. There is no indication that Plaintiff Nautical is unable to obtain the other
information contained in the Clifford Report. The undersigned thus determines that
Plaintiff Nautical is not entitled to obtain the other portions of Mr. Clifford’s Report.
Finally, the undersigned notes that discovery is closed and was closed at the time that
Plaintiff Nautical sought to compel production of Mr. Clifford’s Report, and Nautical has
advanced no exceptional circumstances that would warrant reopening discovery as to
Mr. Clifford’s September 2013 inspection of the M/Y Claire.
Accordingly, on or before July 22, 2015, Defendants shall only produce that
portion of Mr. Clifford’s September 17, 2013 Report that pertains to Nautical Specialists
which reflects the temperature readings taken on September 18, 2013, as displayed in
the chart on page 19 of Mr. Clifford’s Report. No other portion of Mr. Clifford’s Report
18
need be disclosed.
III.
CONCLUSION
Accordingly, for the reasons set forth above, it is
ORDERED AND ADJUDGED that Plaintiff Nautical’s request that the September
17, 2013 Report prepared by Guy Clifford be produced to Plaintiff is Granted, in part. On
or before July 22, 2015, Defendants shall produce the portion of Mr. Clifford’s September
17, 2013 Report that pertains to Nautical Specialists which reflects the temperature
readings taken on September 18, 2013 as displayed in the chart on page 19 of Mr.
Clifford’s Report. No other portion of Mr. Clifford’s Report need be disclosed.
DONE AND ORDERED in chambers in Miami, Florida on July 15, 2015.
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
The Honorable Kathleen M. Williams
United States District Judge
All counsel of record
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