AMI Stamping LLC v. ACE American Insurance Company et al
Filing
46
ORDER Overruling in Part and Sustaining in Part Plaintiff's 44 Objections to Magistrate Judge's Order, and Modifying in Part Magistrate Judge's Order Denying Plaintiff's 33 Motion to Compel. Signed by District Judge Matthew F. Leitman. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMI STAMPING, LLC,
Plaintiff,
Case No. 14-cv-10176
Hon. Matthew F. Leitman
v.
ACE AMERICAN INSURANCE
COMPANY et al.,
Defendants.
_________________________________/
ORDER (1) OVERRULING IN PART AND SUSTAINING IN PART
PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S ORDER (ECF
#44), AND (2) MODIFYING IN PART MAGISTRATE JUDGE’S ORDER
DENYING PLAINTIFF’S MOTION TO COMPEL (ECF #33)
On June 30, 2015, Plaintiff AMI Stamping, LLC, (“AMI”) filed a motion to
compel Defendant ACE American Insurance Company (“ACE”) to produce
unredacted versions of certain documents ACE produced to AMI during discovery
(the “Motion to Compel”). (See ECF #33.) The Court referred the Motion to
Compel to the assigned Magistrate Judge. Following briefing and oral argument,
the Magistrate denied the Motion to Compel in a written order (the “Magistrate’s
Order”). (See ECF #43.) Specifically, the Magistrate Judge concluded that many
of the unredacted documents AMI sought were protected by the attorney-client
privilege and thus did not need to be produced. (See id. at 8-11, Pg. ID 756-759.)
1
AMI timely filed objections to the Magistrate’s Order (the “Objections”).
(See ECF #44.) AMI “does not object to all of the findings of [the] Magistrate
Judge.” (Id. at 2, ¶4, Pg. ID 762.) Instead, AMI objects to the portions of the
Magistrate’s Order which rejected AMI’s demand for unredacted communications
between ACE and its expert witnesses.1 (See id.) According to AMI, it is “entitled
to the[se] communications regardless of whether any privilege attaches to [them]
or not.” (Id.)
In support of this contention, AMI relies on a single case: Reg’l Airport Auth
v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006). According to AMI, Reg’l Airport held
that Federal Rule of Civil Procedure 26 “creates a bright-line rule requiring the
disclosure of all information provided to testifying experts.” (Mot. to Compel,
ECF #44 at 2, ¶5, Pg. ID 762; see also Reg’l Airport, 460 F.3d at 715.)
Thus,
AMI argues that even if ACE’s communications with its experts were otherwise
privileged, Rule 26 and Reg’l Airport “obligated [ACE] to produce [the unredacted
communications] regardless of whether [the communications] are privileged or
not.” (Id. at 3, ¶7, Pg. ID 763.)
AMI’s reliance on Reg’l Airport is misplaced. Reg’l Airport was decided in
2006 before Rule 26 was amended in 2010 to specifically eliminate the “bright
line” rule AMI relies upon. See, e.g., In In re Methyl Tertiary Butyl Ether (MTBE)
1
AMI attached the redacted form of these communications as Exhibit 1 to its
Objections. (See ECF #44-1.)
2
Products Liability Litigation, 293 F.R.D. 568, 576 (S.D.N.Y. 2013) (quoting Reg’l
Airport and explaining that “[t]he 2010 Amendment to Rule 26 abrogates this
bright-line approach in favor of the work-product doctrine's original function:
protecting the orderly prosecution and defense of legal claims by preventing
unwarranted inquiries into the files and the mental impressions of attorneys”)
(internal punctuation omitted); Daugherty v. American Exp. Co., 2011 WL
1106744, at *4 (W.D. Ky. Mar. 23, 2011) (holding that 2010 amendments to Rule
26 “limit the amount of [expert] disclosure” as compared to the broader “brightline rule” adopted in Reg’l Airport).
Thus, ACE need not produce the
communications it had with its testifying experts in their entirety.
Nonetheless, Rule 26, even as amended, still requires the disclosure of some
communications – or portions of communications – between a party’s attorney and
a testifying expert witness. Indeed, communications, or portions of threof, must be
produced if 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.
3
Fed. Rule Civ. Proc. 26(b)(4)(C)(i)-(iii). See also Bailey v. Scoutware, LLC, 1210281, 2014 WL 2815688, at *7 (E.D. Mich. June 23, 2014) (Rule 26(b)(4)(C)
“does not protect underlying facts” contained within otherwise privileged
communications from disclosure).
Here, to the extent that any of the communications attached as Exhibit 1 to
AMI’s Objections contain redacted information that falls within Rule 26(b)(4)(C)’s
three enumerated categories, ACE shall produce unredacted versions of these
communications.
Likewise, ACE shall produce communications (or portions
thereof) between its counsel and any other testifying experts to the extent that those
communications contain information that falls within the three enumerated
categories.
However, ACE may maintain its redactions with respect to any portion of
the communications between its counsel and its experts that do not fall within the
three limited categories quoted above. Indeed, as the Advisory Committee Notes
to the 2010 Amendment plainly provide, “[u]nder the amended rule, discovery
regarding attorney-expert communications on subjects outside the three
exceptions” are prohibited without court order.2
2
ACE argues that it may maintain all redactions of communications from its
testifying expert witnesses because these redactions “do not constitute facts or data
provided to a testifying expert.” (ACE Resp. Br., ECF #45 at 2-3, Pg. ID 804-805)
(emphasis in original). This argument appears to be premised on the mistaken
belief that Rule 26, as amended, protects a party from disclosing any portions of
4
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that
the Objections (ECF #44) are OVERRULED IN PART AND SUSTAINED IN
PART and the Magistrate’s Order (ECF #43) is MODIFIED IN PART only as
follows: ACE shall produce to AMI any portions of the communications attached
as Exhibit 1 to the Objections (ECF # 44-1) that contain information that falls
within the three enumerated categories in Rule 26(b)(4)(C)(i)-(iii). ACE may
maintain its redactions with respect to any portion of the communications that do
not fall within these categories. Likewise, ACE shall produce any portions of
communications between its counsel and any of its other testifying expert
witnesses (i.e., other than the expert witness involved the communications attached
as Exhibit 1 to the Objections) that contain information that falls within the three
enumerated categories in Rule 26(b)(4)(C)(i)-(iii).
IT IS SO ORDERED.
Dated: November 17, 2015
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
communications that come from a testifying expert witness (as opposed to
communications to such an expert witness). But the rule does not draw a
distinction between communications from experts and communications to experts.
And ACE has not provided any authority to support drawing such a distinction
here. It is certainly possible that a communication from an expert to an attorney
could contain, for instance, information previously provided to the expert by the
attorney, and such a communication would be subject to disclosure. Thus, ACE
may not refuse to produce unredacted communications that contain information
that falls within Rule 26(b)(4)(C)’s enumerated categories on the ground that the
communication came from its testifying expert witness.
5
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on November 17, 2015, by electronic means
and/or ordinary mail.
s/Shawna C. Burns
Case Manager
(313) 234-5113
6
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