CITIZENS INSURANCE COMPANY OF THE MIDWEST, AS SUBROGEE OF WILLIAM MAGEE v. LC ELECTRONICS, USA, INC. et al

Filing 145

ORDER denying 138 Motion to Compel. Signed by Magistrate Judge William G. Hussmann, Jr., on 2/1/2013. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
CITIZENS INSURANCE COMPANY OF
THE MIDWEST, an Indiana Corporation, as
Subrogee of William Magee,
Plaintiff,
v.
LG ELECTRONICS, USA, INC., a New Jersey
Corporation, and SEARS ROEBUCK &
COMPANY, a New York Corporation,
Defendants.

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3:11-cv-40-RLY-WGH

ORDER DENYING DEFENDANTS’
MOTION TO COMPEL
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on the Motion to Compel filed by Defendants on
December 26, 2012. (Docket No. 138). Plaintiff’s response to the motion was
filed on January 9, 2013. (Docket No. 140). An in camera filing of certain
documents was received by the court on January 15, 2013, per the court’s order
allowing the submission entered January 11, 2013. (Docket No. 142).
The Magistrate Judge, being duly advised, now DENIES the Motion to
Compel.
Facts and Law Applicable to the Analysis
1. This is a subrogation matter arising out of the fire at the home of
subrogee William Magee. The fire was caused by a refrigerator designed,

manufactured, and sold by defendants LG Electronics and Sears Roebuck &
Company.
2. Plaintiff retained Charles Fricke, PE, as its expert as to the design
defect in the subject refrigerator.
3. Defendants issued a deposition notice for Mr. Fricke and a subpoena
for his file and other documents.
4. Mr. Fricke submitted his complete file, consisting of more than 500
pages, to Plaintiff’s counsel, who examined the papers for privileged or protected
matter.
5. Plaintiff’s counsel removed 45 pages from the file as privileged. The
removed documents consisted of:
•

some but not all of the emails/correspondence between Mr.
Fricke and Plaintiff’s counsel;

•

questions prepared by Mr. Fricke for Plaintiff’s counsel’s use
during the deposition of Defendants’ engineers; and

•

transcripts of electronic chats between Mr. Fricke and
Plaintiff’s counsel compiled during the deposition of
Defendants’ engineers. (Removed documents from the Fricke
file, submitted to the Judge in camera, Exhibit 1).

6. These removed documents were listed on a privilege log that was
provided to Defendants. (Privilege Log, Exhibit 2). A copy of the privilege log and
the non-privileged portions of Mr. Fricke’s file were provided to Defendants
several days before Mr. Fricke’s deposition.

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7. Plaintiff’s counsel did not remove all of the emails or other
correspondence with Mr. Fricke. Specifically, Plaintiff did not remove any
documents related to Mr. Fricke’s compensation; the facts or data that Plaintiff’s
counsel provided; or the assumptions that Plaintiff’s counsel provided and that
Mr. Fricke relied on in forming his opinions. See FED. R. CIV. P. (“Rule”)
26(b)(4)(C).
8. In this case, Mr. Fricke, the expert, must be classified as a testifying
expert.
9. As Plaintiff points out, Rule 26 was amended in 2010 to address the
scope of expert discovery. Specifically, Rule 26(b)(4)(C) provides that the
attorney work product doctrine, codified at Rule 26(b)(3)(B), applies to
“communications between the party’s attorney and any witness required to
provide [an expert disclosure] report,” except insofar as those 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.1

The Magistrate Judge notes that the authorities relied upon by the Defendants in
their Motion to Compel pre-dated the change to Rule 26, which is applicable to the case
at bar.
1

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Analysis
Specifically addressing the privilege log:
1. July 3-6, 2010 email exchange – Motion denied because the
information does not fall within the category of information required to be
disclosed by Rule 26(b)(4)(C)(i), (ii), or (iii).
2. December 8, 2011 email exchange – Motion denied for reason specified
in paragraph 1 above.
3. December 22, 2011 email exchange – Motion denied for reason
specified in paragraph 1 above.
4. December 29, 2011 email exchange – Motion denied for reason
specified in paragraph 1 above.
5. January 9-12, 2012 email exchange – Motion denied for reason
specified in paragraph 1 above and report draft protected by Rule 26(b)(4)(B).
6. January 24, 2012 email exchange – Motion denied for reason specified
in paragraph 1 above and report draft protected by Rule 26(b)(4)(B).
7. April 28-30, 2012 email exchange – Motion denied for reason specified
in paragraph 1 above and report draft protected by Rule 26(b)(4)(B).
8. With respect to the August 17 and 24, 2012 letters from Mr. Fricke to
Black & Moss, these do appear to be proposed questions provided by the expert
to the attorneys for upcoming depositions of the Defendants’ experts and
therefore would be protected communications protected under Rule 26(b)(4)(C).
For the same reason, discussions between counsel and the expert during the

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depositions of Engineer Baek and Engineer Cho would be protected under the
same rationale.
9. Finally, with respect to the November 11, 2010; December 7, 2010; and
October 4, 2011 email exchanges between Mr. Fricke and a consultant who is
not expected to testify at trial, those matters are protected pursuant to Rule
26(b)(4)(D), unless manifest injustice would result. No such showing of manifest
injustice has been made at this time. This also applies to the “disc” of materials
from the expert who is not expected to be called as a witness for trial.
Therefore, the Motion to Compel is DENIED.
You are hereby notified that the District Judge may reconsider any pretrial
matter assigned to a United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(A) where it is shown that the order is clearly erroneous or contrary to
law.
SO ORDERED the 1st day of February, 2013.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Served electronically on all ECF-registered counsel of record.

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