Johnson et al v. City of Rockford et al

Filing 265

MEMORANDUM Opinion and Order; 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. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 3/27/2018: (yxp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Lumont Johnson &
Anthony Ross,
Plaintiffs,

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)
15 CV 50064
)
)
v.
)
)
Judge Iain D. Johnston
City of Rockford, et al.,
)
Defendants.
)
_________________________________________________________________________
Tyjuan Anderson,
Plaintiff,
v.
City of Rockford, et al.,
Defendants.

)
)
)
)
)
)
)

15 CV 50065
Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
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.

1

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

In

(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 work2

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:
3

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 like this
report?
Mr. Greenberg [one of the other Plaintiff’s counsel]: I’m going to object –
By Mr. Smith:
Q: Is that correct?
Mr. Greenberg: (Continuing) – also. I don’t – I don’t think the – how the
report is drafted and the various drafts is discoverable anymore.
Mr. Smith: I didn’t ask him what the draft is. I’m asking if he prepared this
report.
Mr. Greenberg: But that would get into how the drafts and how the report
was prepared.
By Mr. Smith:
Q: Okay. Go ahead and answer the question.
A: I – sorry.
Mr. Slosar: I’m instructing you not to answer that question based on the work
product privilege.
The Witness: Okay.
*

*

*

Q: Okay. And so this was prepared by plaintiffs’ counsels?
A: No.
Mr. Slosar: Objection. I will allow for Mr. Libby to answer whether he
drafted this report. As to the underlying interaction between Mr. Libby and any of
the counsel, that is protected by the work product privilege.
Mr. Mogbana [one of the other defense counsel]: So I’m sorry. Let me just
understand. Are you withdrawing your –
Mr. Slosar: I’m withdrawing the initial objection.
Mr. Mogbana: Okay.
Mr. Slosar: Mr. Libby can answer the question as to whether he typed the
report.
Mr. Mogbana: Okay.
4

The Witness: I typed the report, sir.
By Mr. Smith:
Q: So you typed this report?
A: I typed a good majority of this report.
Q: But not all of it?
A: I’m sorry?
Q: But not all of it?
Mr. Slosar: And I object to that question and will instruct Mr. Libby not to
answer that specific question as to the work product privilege.
By Mr. Smith:
Q: So you did not type this report in its entirety?
Mr. Slosar: The same objection. Instructing you not to answer.
The Witness: Okay.
Dkt. #177-1, p. 13- 16.
Based upon the instruction not to answer who typed portions of Mr. Libby’s
report, the Defendants brought their motion to compel. The Plaintiffs filed their
response in opposition to the motion. And the Court heard arguments on the
motion. At the argument, the Court ordered the Plaintiffs’ counsel to provide the
Court in camera with a copy of Mr. Libby’s report, highlighting those portions that
were not typed by Mr. Libby. The highlighted report is illuminating.
The highlighted report establishes that Mr. Libby accurately testified that he
typed a majority of the 40-page report. But the highlighted report also establishes
that a person other than Mr. Libby typed at least four pages of the “Statement of
Facts,” and, as a result, almost half of factual section was typed by another person.
In the portion of the report regarding Mr. Libby’s first opinion regarding whether
the “investigators failed to follow accepted police practices and exhibited ‘tunnel
vision,’’’ only about one page was typed by a person other than Mr. Libby. That
would be about 15%. As to Mr. Libby’s second opinion regarding whether a
“reasonable police officer would have coerced witnesses into making statements by
threatening or physically assaulting them,” a person other than Mr. Libby typed
almost the entire opinion. Mr. Libby typed only one paragraph relating to this
opinion. As to Mr. Libby’s third opinion regarding whether “[p]roper policing
requires that officers report all investigative information – good or bad – to the
prosecutor,” somebody other than Mr. Libby typed about a page – essentially half of
that report’s discussion of the topic. The remainder of the report, which runs
another thirteen pages and contains three other opinions, was typed by Mr. Libby.
The sole issue argued in the Defendants’ motion to compel is whether the
Plaintiffs should be forced to identify who typed those portions of Mr. Libby’s report
that he admittedly did not type. The Defendants are not seeking to strike the
report. 1
1

Unfortunately, a plethora of cases exist addressing the pernicious practice of attorneys
5

The Plaintiffs cite no cases that protect the identity of the typist of an expert
commandeering the preparation of expert reports. Without doubt, counsel can assist in the
preparation of the expert report. Numatics, Inc. v. Balluff, Inc., 66 F. Supp. 3d 934, 942
(E.D. Mich. 2014); Crowley v. Chait, 322 F. Supp. 2d 530, 543 (D. N.J. 2004). But when
counsel’s assistance becomes so intrusive and overwhelming, it cannot be fairly said that
the report was “prepared” by the expert. Bekaert Corp. v. City of Dyersburg, 256 F.R.D.
573, 578 (W.D. Tenn. 2009). Consequently, improper expert reports subject to being
stricken include reports ghost-written from whole-cloth by counsel, altered or prepared by
counsel merely to appease counsel or because of counsel’s intimidation or undue influence,
or that merely express the opinions of the lawyers who hired the expert. McClellan v. IFlow Corp., 710 F. Supp. 2d 1092, 1118 (D. Or. 2010). Determining whether counsel
crosses the line separating permissible assistance from improper participation in the
experts’ report writing requires a fact-specific inquiry. Numatics, 66 F. Supp. 3d at 942.
Based upon this fact-specific inquiry (which could not be accomplished without knowing
who typed the report and counsel’s input) some courts have declined to strike expert
reports. See, e.g., Paliwoda v. Showman, No. 12-2740, 2013 U.S. Dist. LEXIS 158707, at
*13 (D. Kan. Nov. 6, 2013) (expert did not have secretary so report typed by counsel who
mailed expert report, which was adopted by expert after his review); Abernathy v. Union
Pac. R.R. Co., No. 08 CV 4187, 2011 U.S. Dist. LEXIS 41931, at *15-16 (E.D. Ark. Apr. 13,
2011) (final form of report sent by counsel to expert, who reviewed, approved and signed it
after reviewing and considering materials identified in report); Isom v. Howmedica, Inc.,
No. 00 C 5872, 2002 U.S. Dist. LEXIS 9116, at *2-3 (N.D. Ill. May 20, 2002) (attorney
prepared initial draft of report based on extensive discussions with expert regarding
findings after expert reviewed relevant materials, and expert amended final draft, which
incorporated amendments). In contrast, other courts have struck expert reports that were
essentially drafted by counsel. See, e.g., McClellan v. I-Flow Corp., 710 F. Supp. 2d at
1124-25 (counsel was more than “mere conduit,” instead counsel created the test concept,
provided raw data, selected agent to perform underlying work, analyzed his data against
experts and encouraged expert to do the same, identified test subjects and conferred with
expert to “correct” issues in report); Numatics, 66 F. Supp. 3d at 943-45; Stein v. Foamex
Int’l, Inc., No. 00-2356, 2001 U.S. Dist. LEXIS 12211, at *16 (E.D. Pa. Aug. 15, 2001)
(expert played no substantial role in preparing report); In re Jackson Nat’l Life Ins. Co.
Premium Litig., No. 96 MD 1122, 2000 U.S. Dist. LEXIS 1318, at *2-3 (W.D. Mich. Feb. 8,
2000) (extreme similarity between expert’s purported report and report prepared by
counsel in different case established that report was prepared by counsel not expert).
Some courts have attempted to warn counsel as to the outer limits of their participation.
See, e.g., In re Asbestos Prods. Liab. Litig., 714 F. Supp. 2d 535, 543 (E.D. Pa. 2010)
(although counsel wrote report, expert testified that he agreed with its content and filed a
declaration with the court stating that the report was based on personal knowledge and his
professional experience); Crowley, 322 F. Supp. 2d at 544-45 (expert verbally provided
counsel with opinions; counsel incorporated opinions into report for expert’s review; and
expert adopted report). Based upon this case law and a review of the highlighted final
report provided for in camera inspection, the Court would not strike Mr. Libby’s report.
For purposes of Rule 26, Mr. Libby “prepared” the final report, albeit with assistance from
somebody else – most likely counsel.
6

report. Additionally, the Plaintiffs do not even analyze their position under the
language of Rule 26(b)(4). Instead, the Plaintiffs make a convoluted argument that
they are protected from identifying the typist because doing so would somehow be
equivalent to producing a draft as well as attorney-expert communications. 2 The
problems with the Plaintiffs’ argument are numerous, not the least of which is that
the Plaintiffs’ argument violates the plain language of the Rule.
First, Mr. Libby’s report is not a draft. It is the final report, which was
disclosed to the Defendants.
Second, it is a final report that contains facts or data, 3 or assumptions that
the Plaintiffs’ counsel 4 provided to Mr. Libby who, because the information was
incorporated into the final draft, by definition, “considered” or “relied upon” this
information. Counsel cannot argue that Mr. Libby did not consider the facts or data
or rely upon the assumptions when this information is contained in the final report.
Third, the Plaintiffs fail to cite even a single case holding that the identity of
the typist is protected from disclosure. Indeed, numerous cases discuss the
unfortunate phenomena of counsel typing expert reports. 5 The existence of these
cases, and the absence of any cases supporting the Plaintiffs’ argument, is telling.
It tells that even in those cases in which counsel authored some or all of an expert’s
report, counsel knew and the courts understood that the identity of the author was
not protected.
Fourth, the Plaintiffs cite no authority to support their argument. The
Plaintiffs’ argument is that by simply identifying the name of the person other than
In the response memorandum, the Plaintiffs vehemently contest a suggestion “that the
report was authored by Plaintiff’s counsel.” Dkt. #162, p. 3. In doing so, they cite to the
portions of the deposition transcript reproduced above in which not only does Mr. Libby
qualify that he typed “a good majority of this report,” but also that the Plaintiffs’ counsel is
objecting and instructing the witness not to answer pursuant to the “work product
privilege.” (As an aside, there is no “work-product privilege.” There is an attorney-client
privilege. And there is a work-product doctrine. The two are distinct. Appleton Papers,
Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012) (“[T]he work product doctrine [ ] ‘is distinct
from and broader than the attorney-client privilege.’” (quoting United States v. Nobles, 422
U.S. 225, 238 n.11 (1974))). By invoking the doctrine and referencing Rule 26(b)(4), the
Plaintiffs’ counsel essentially admitted to typing portions of the report. The rule only
protects from disclosure communications between the party’s attorney and the witness.
Fed. R. Civ. P. 26(b)(4)(C). If a non-attorney typed portions of the report, then the
Plaintiffs can seek no quarter in the protection of the rule. Indeed, if an administrative
assistant, for example, merely typed portions of the report, Mr. Libby would have testified
to that without an objection and the motion to compel would never have been filed. The jig
is up. Everyone knows who typed the portions of the report.
3
Remember that four pages not typed by Mr. Libby were included in the “Statement of
Facts” section of the report.
4
If the Plaintiffs’ counsel did not type these portions of the report, then the Plaintiffs
cannot seek to invoke the protections of Rule 26(b)(4).
5
See cases cited in footnote 1 supra.
2

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Mr. Libby who typed portions of the final expert report, Rule 26(b)(4)’s protections
are violated because it will disclose the interaction between Mr. Libby and the
attorneys in the drafting process. To support this novel argument, the Plaintiffs
cite the single case of United States CFTC v. Newell, 301 F.R.D. 348 (N.D. Ill. 2014).
But Newell is not helpful for the Plaintiffs; in fact, the decision undermines their
argument. Initially, Newell is factually different for at least two reasons. First, the
defendant in Newell did not argue that the name of the typist (who, of course, was
the attorney) could not be disclosed, and Newell does not even address this issue, let
alone hold that the name of the typist is protected. Second, the issue in Newell
involved whether drafts – meaning preliminary, rough versions of the expert report
– were required to be disclosed. Again, at issue here is the name of the person other
than Mr. Libby who typed portions of the final document. Moreover, aside from
these factual distinctions, critically, Newell supports the proposition that when
counsel physically include facts, data and assumptions into even drafts of the expert
report, those portions of the drafts are not protected. Importantly, Newell states,
“Arguably, facts, data or assumptions provided by an attorney to the expert should
not be insulated from production simply because the vehicle of communication was
a draft of the report or an attorney’s revision to the expert’s draft.” Newell, 301
F.R.D. at 353. The Newell decision then found that it was not required to make
that ultimate determination. Id.
But another court did make that ultimate determination: United States ex
rel. Wall v. Vista Hospice Care, 319 F.R.D. 498 (N.D. Tex. 2016). In Vista Hospice
Care, the court analyzed the interplay of the various provisions of Rule 26(b). The
Vista Hospice court then found that protection is not afforded – even in draft reports
– when counsel provide facts, data and assumptions that are cooked into the final
report:
Based on the text of Rule 26(b)(4) as well as its structure and context,
and looking to the Advisory Committee’s notes for guidance and
support, the Court concludes that, notwithstanding Rule 26(b)(4)(B),
Rule 26(b)(4)(C) and its exceptions apply to any communications
between the party’s attorney and the expert witness in the form of a
draft expert report to the extent that portions of the draft transmitted
between the attorney and the exporter either identify facts or data that
the party’s attorney provide and that the expert considered in forming
the opinions to be expressed or identify assumptions that the party’s
attorney provide and that the expert relied on in forming the opinions
to be expressed. . . The text, structure, and context of Rule 26(b)(4)
support this conclusion.
*

*

*

[R]eading Rule 26(b)(4)(C) and its exceptions to apply to any
8

communications between the party’s attorney and the expert witness
of facts or data that the attorney provided and the expert considered or
of assumptions that the attorney provide and the expert relied on –
including in the form of a draft expert report transmitted between an
attorney and an expert – is consistent with the structure and purpose
of Rule 26(a)(2)(B) and 26(b)(4).
*

*

*

Accordingly, reading Rule 26(b)(4) to require disclosure of a draft
expert report transmitted between an attorney and an expert that
identify facts, data, or assumptions provide by an attorney – even
though the vehicle of communication between the attorney and the
expert was a draft of a report or an attorney’s revision of the expert’s
draft – does not undermine the purpose behind providing work-product
production protection to draft reports or render Rule 26(b)(4)’s
extension of work-product protection to drafts a nullity.
*

*

*

Thus, to conclude that Rule 26(b)(4)(B) precludes the application of
Rule 26(b)(4)(C) and its exceptions to any communication between the
party’s attorney and the expert witness in the form of a draft expert
report and permits attorneys to protect from discovery facts or data
considered by or assumptions relied upon by a retained expert by
providing some in a draft report would be inconsistent with Rule
26(b)(4)(C)(ii)-(iii)’s exceptions to an otherwise broad application of
work-product protection and the structure and purpose of Rules
26(a)(2)(B) and 26(b)(4) described above.
Vista Hospice Care, 319 F.R.D. at 508-09.
Moreover, the Vista Hospice Care court noted an important policy
consideration furthered by its construction of the rules; namely, by adopting a
contrary construction – as the Plaintiffs do here – would encourage counsel to ghost
write expert reports. Id. at 509. Experts should not be attorneys’ puppets who
merely parrot opinions ginned up by counsel. Indeed, following the rationale of the
Plaintiffs’ argument, an attorney could simply take a blank computer screen, fill it
with counsel’s own report, hand it off to the expert for signature, and nobody –
including the trier of fact – would be allowed to know this pernicious practice
occurred. 6 Moore’s Federal Practice, Section 26.23[5], p. 26-120.3 (Matthew

9

Bender 3d ed. 2016). 6
Consequently, the Plaintiffs’ entire premise for their argument fails under
Vista Hospice Care. And the premise fails for good reason: Vista Hospice Care’s
interpretation of Rule 26 is true to the rule’s language and purpose.
As the Plaintiffs note in their own motion to compel addressed below, “the
Seventh Circuit has held . . . that counsel should be afforded an opportunity to
conduct expert discovery in an effort to appropriately cross-examine an expert.”
Dkt. #211 at p. 13 (citing Fid. Nat. Title Ins. Co. v. Intercounty Nat. Title Ins. Co.,
412 F.3d 745, 750 (7th Cir. 2005)). Not surprisingly, the Court agrees with the
Seventh Circuit in that regard. The Defendants should be allowed to cross-examine
the Plaintiffs’ expert with the fact that somebody else typed portions of his report.
Perhaps the Plaintiffs have a good reason why somebody else typed portions of Mr.
Libby’s report. Maybe Mr. Libby’s hand was bitten by a dog, smashed in a car door
or had a piano keyboard cover slammed onto it. If so, then Plaintiffs’ counsel will be
able to elicit that fact on redirect examination. Maybe the reason for having
somebody else type portions of Mr. Libby’s report is not as good. For example,
maybe Mr. Libby failed to comprehend the Plaintiffs’ counsels’ belief of the import
of certain facts, data, and assumptions, and, consequently, counsel decided to
include those into the report, lest Mr. Libby not be able to testify to them. Fed. R.
Civ. P. 37(c)(1). The charade regarding “preparation” of expert disclosures and
reports contained in Rule 26 surely does not go so far as to allow counsel to write an
expert’s report – or portions of it – and then hide that fact from the jury. Cross
examination will allow the jury to determine how much weight to give to Mr.
Libby’s opinions. Sunbeam Prods. v. Homedics, Inc., 670 F. Supp. 2d 873, 883 (W.D.
Wis. 2009) (allowing jury to decide weight of evidence to give to expert opinion that
was assisted by counsel); Marek v. Moore, 171 F.R.D. 298, 302 (D. Kan. 1997) (the
6 Moore’s Federal Practice, Section 26.23[5], p. 26-120.3 (“The better view rejects the
contention that a report prepared by counsel is the report of the expert, even if the expert
‘substantially’ agrees with its conclusions. Even though the advisory committee note
acknowledges that counsel may ‘provid[e] assistance to experts in preparing the reports,’
the rule does not contemplate blanket adoption of reports prepared by counsel or others, let
alone equivocal adoption. Rather, the rule is intended to facilitate discovery by allowing an
examination of the work of the expert. A report prepared by the expert exposes the
thought process and method of the expert in advance of an oral examination. Its discipline
both reduces the incentives of witnesses to present preliminary or tentative views and to
tailor their opinion to an advocates’ case. While others may assist in the preparation of the
report, the final report must be that of the expert.”); see also Daniel Barsky, How
Designation of Expert Witnesses Can Make or Break Privilege,
https://www.americanbar.org/groups/litigation/committees/classactions/articles/2017/spring2017-how-designation-of-expert-witnesses-can-make-or-breakprivilege.html (although Rule 26 affords protections an exception is “when an attorney
becomes so involved in the drafting of the report that the attorney effectively becomes the
expert”).
6

10

court “would instead give opposing counsel the opportunity to cross-examine the
witness. Effective cross-examination serves to expose inconsistencies of importance.
It may also develop the extent to which a witness has been influenced by counsel to
make changes in what he says.”); 6 Moore’s Federal Practice, Section 26.23[5] at 26120.3.
By April 16, 2018, the Plaintiffs must identify the person or persons who
typed those portions of Mr. Libby’s expert report that he did not type.
B. Plaintiffs’ Motion to Compel
Plaintiffs’ motion to compel seeks two documents withheld by the Individual
Defendants.
Plaintiffs’ counsel served a subpoena on the Individual Defendants’ counsel
seeking documents. The Individual Defendants’ counsel withheld two documents
from production, raising a host of procedural issues that were resolved at the
hearing, but also claiming they were protected from disclosure. The first document
is basically a draft of a statement of facts that would eventually be used in support
of their motion for summary judgment. (At this point, a reasonable person might
wonder how the information could be protected if it has now been filed with the
Court.) The second document is an outline relating to a witness in the case. The
Defendants’ counsel characterized these documents as “roadmaps.” There is no
dispute that the Individual Defendants’ counsel created these documents. But,
more importantly, there is no dispute that Mr. Lyman “reviewed” these “roadmap”
documents. Dkt. #223, p. 2. Indeed, both of these documents are enumerated on an
appendix with the title “APPENDIX #1 – MATERIALS REVIEWED.” Moreover, it
is undisputed that at Mr. Lyman’s deposition, he testified that he “considered” these
documents.
As explained previously, Rule 26(b)(4)(C) provides a general protection for
communications between a party’s attorney and a retained expert witness, but then
specifically exempts from protection three categories of documents. The category
applicable here is contained in Rule 26(b)(4)(C)(ii). Communications that “identify
facts or data that the party’s attorney provided and that the expert considered in
forming the opinions to be expressed” are not protected. Documents that are
“reviewed” are documents that an expert “considered,” which means they are not
protected from disclosure. Euclid Chem. Co. v. Vector Corrosion Techs., No. 05 CV
80, 2007 U.S. Dist. LEXIS 38720, at *13-15 (N.D. Ohio, May 29, 2007) (courts have
embraced an objective test that defines considered as anything reviewed, received
or read by the expert); see also In re Benicar Products Liab. Litig., 319 F.R.D. at
216-18 (collecting cases discussing broad definition of “considered”).
Because the outline and statement of facts were “considered” by Mr. Lyman,
they are not protected. Both documents must be produced to the Plaintiffs’ counsel
by April 16, 2018.
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II. CONCLUSION
Both motions to compel are granted. The information must be provided by
April 16, 2018. Again, discovery remains closed.

Date: March 27, 2018

_____________________________
Iain D. Johnston
U.S. Magistrate Judge

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