Rigsby et al v. State Farm Fire and Casualty Company et al

Filing 1570

ORDER granting in part and denying in part 1507 Motion to Compel. Signed by Magistrate Judge Robert H. Walker on December 12, 2019 (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

UNITED STATES OF AMERICA ex rel.
CORI RIGSBY and KERRI RIGSBY

VERSUS

RELATORS/COUNTER-DEFENDANTS

CIVIL ACTION NO. 1:06CV433-HSO-RHW

STATE FARM FIRE AND CASUALTY COMPANY DEFENDANT/COUNTER-CLAIMANT
ORDER GRANTING IN PART MOTION TO COMPEL
Before the Court is the Relators’ motion to compel production of an unredacted version
of A.J. Garretson’s report. Doc. [1507]. A.J. Garretson is a forensic examiner whose company,
Garretson Consulting, Inc., provides consulting services related to forensic data recovery.
During 2006 and 2007, prior to the unsealing of the Relators’ qui tam action, State Farm Fire and
Casualty Company hired Garretson Consulting to conduct an internal investigation. Garretson
Consulting imaged State Farm computers assigned to the Rigsbys, as well as computers owned
by State Farm that were not assigned to the Rigsbys. The findings and results of this
investigation were detailed in the Garretson Report dated January 24, 2007.
In support of their counterclaim, State Farm has designated Garretson as a non-reporting
expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Hence, it was not
required to produce an expert report from Garretson as part of its expert disclosures. However,
in this case, there is a report drafted by Garretson, which he created as a result of his
investigation done in anticipation of litigation. Although the investigative report is not an
“expert report” in the technical legal sense of the term, the document provides insight into the
facts and circumstances surrounding Garretson’s forensic investigation of State Farm’s

computers. According to State Farm, such background information includes directions
Garretson received from State Farm’s attorneys.
During discovery, the Relators requested production of documents concerning “the
Rigsbys’ alleged improper access or misuse of State Farm’s computer systems, including
forensic data obtained from examination of the State Farm laptops assigned to the Rigsbys.”
Doc. [1533-1] at 6. In response to this discovery request, State Farm produced the Garretson
Report, but did so with several key redactions. See Doc. [1546]. Some redactions were done
because State Farm deemed the information irrelevant. State Farm redacted other passages based
on the work product doctrine. State Farm argues that the latter information would reveal the
mental impressions and trial strategy of State Farm’s attorneys. The Relators filed the instant
motion to compel arguing that they are entitled to a complete, unredacted version of the
Garretson Report. Relators contend that State Farm waived all attorney client privileges and
work product protections by virtue of designating Garretson as a non-reporting expert.
With respect to State Farm’s relevancy argument, the Court finds State Farm should
produce the Garretson Report without relevancy redactions. Although a party is under no
obligation to produce documents not relevant to the subject litigation, it is not the practice of this
Court to allow unilateral redactions of allegedly irrelevant information contained within
otherwise discoverable documents. See Bartholomew v. Avalon Capital Grp., 278 F.R.D. 441,
451-52 (D.Minn. 2011); Rodriguez-Ocasio v. Midland Credit Mgm’t, No 17-3630(ES)(MAH),
2019 WL 3821769, at *2 (D.N.J. July 23, 2019). State Farm offers no special circumstances or
compelling reason to permit relevancy redactions contained in the Garretson Report.
The Relators also request an order compelling State Farm to produce portions of the
report that State Farm redacted on the basis of the work product doctrine. State Farm has

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designated Garretson as a non-reporting or “hybrid” fact and expert witness. State Farm asserts
that it intends to offer Garretson’s testimony only as to costs incurred as a result of the Rigsbys’
unauthorized use and access of State Farm’s computers. According to State Farm, Garretson is
not providing opinion testimony regarding the conclusions in Garretson’s investigative report;
therefore, State Farm should not be forced to reveal attorney work product contained in the
report.
The “purpose of the expert disclosure rule is to provide opposing parties reasonable
opportunity to prepare for effective cross examination and perhaps arrange for expert testimony
from other witnesses.” Rembrandt Vision Techs., L.P. v. Johnson & Johnson Vision Care, Inc.,
725 F.3d 1377, 1381 (Fed. Cir. 2013) (internal quotation marks omitted). Consistent with this
purpose, courts look to what a party actually disclosed, not what the party intended to disclose.
Cooper v. Meritor, Inc., NO. 4:16-CV-52-DMB-JMV, 2018 WL 2223325, at *7 (N.D.Miss. May
15, 2018). In its expert disclosure, State Farm indicated that “Mr. Garretson is expected to
testify in the area of computer forensics concerning the Rigsbys’ use of their computers and their
access to State Farm’s computer system, and that the Rigsbys’ performed unauthorized acts
using their State Farm issued computers....” Doc. [1507-2] at 4. Thus, contrary to State Farm’s
contention, the scope of Garretson’s anticipated testimony addresses the contents and
conclusions of the report and not merely the issue of costs.
State Farm also argues that the redacted material would disclose “detailed information
concerning the searches” done at the instruction of State Farm’s attorneys. Doc. [1534] at 7.
Thus, the material should be withheld because “it would reveal the mental impressions and legal
strategy of the attorneys who directed the search.” Id. The Relators counter that State Farm
waived the work product protection when it designated Garretson as a non-reporting expert.

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Both parties cite to the 2010 amendments to Rule 26 to buttress their positions. Neither party has
cited to Fifth Circuit authority or to persuasive authority from within the district addressing
specifically the 2010 amendments and their effect on privilege as it relates to non-reporting
experts.
State Farm designated Garretson as a non-reporting expert under Rule 26(a)(2)(C). This
particular subsection “addresses the disclosure of expert witnesses who were involved in the
events leading up to litigation and may testify both as an expert and as a fact witness.” LaShip,
L.L.C. v. Hayward Baker, Inc., 680 Fed. App’x 317, 324 (5th Cir. 2017). A non-reporting
expert’s testimony under Rule 26(a)(2)(C) “arises not from his enlistment as an expert, but,
rather, from his ground-level involvement in the events giving rise to the litigation.” DiSalvatore
v. Foretravel, Inc., No. 9:14-cv-150-KFG, 2016 WL 7742996, at *2 (E.D.Tex. May 20, 2016).
In 2010, Rule 26 was “amended to address concerns about expert discovery.” Fed. R. Civ. P. 26,
advisory committee’s note to 2010 amendment. The amendment provided work product
protection for drafts of expert reports or disclosures and protection for communications between
the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B). Id.; see
also United States v. Sierra Pacific Industries, No. CIV S-09-2445 KJM EFB, 2011 WL
2119078, at *2 (E.D.Calif. May 26, 2011). As explained by the court in Sierra Pacific, “[u]nder
the old rule, there was little or no protection for what counsel said or provided to a designated
expert and such communications were generally discoverable.” Sierra Pacific Industries, 2011
WL 2119078, at *1. Courts in the Southern District of Mississippi followed this general rule as
well. See TV-3 Inc. v. Royal Ins. Co. of Am., 193 F.R.D. 490, 491 (S.D. Miss. 2000) (Rule 26
“allows discovery of all communications between counsel and a retained testifying expert, even

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if those communications contain attorneys’ mental impressions or trial strategy or is otherwise
protected by the work privilege.” (emphasis in the original)).
Under the amended rule, some communications no longer waive work product protection,
but the rule distinguishes between experts who are required to provide reports and experts who
are not. Sierra Pacific Industries, 2011 WL 2119078, at *1. The amended Rule 26 protects
communications between a party’s attorney and witnesses required to provide reports, “[b]ut the
rule is silent as to communications between a party’s attorney and non-reporting experts.” Id. at
*5. In sum, “the amended rule neither created a protection for communications between counsel
and non-reporting expert witnesses, nor abrogated any existing protections for such
communications.” Id. at *7. Both prior to and after the 2010 amendments, the designation of a
non-reporting expert generally waived applicable privileges for communications between a
party’s attorney and the non-reporting expert. See Luminara Worldwide, LLC v. Liown
Electronics Co. Ltd., No. 14-3103 (SRN/FLN), 2016 WL 6914995, at *6 (D.Minn. May 18,
2016).
Some courts have explained this different treatment for witnesses required to furnish a
report versus non-reporting experts, who are both fact and expert witnesses. Specifically, the
distinction exists because of difficulties separating a hybrid witness’ sense impressions from his
expert opinions and because of a concern for “attorney-caused bias”. See City of Mankato,
Minnesota v. Kimberly-Clark Corp., No. 15-2010 (JRT/TNL), 2019 WL 4897191, at *11
(D.Minn. May 28, 2019); Garcia v. Patton, No. 14-cv-01568-RM-MJW, 2015 WL 13613521, at
*4; PacificCorp v. Northwest Pipeline GP, 879 F.Supp.2d 1171, 1213 (D.Or. 2012); Sierra
Pacific, 2011 WL 2119078, at *6-7, 10. However, courts have cautioned against finding an
automatic waiver of the work product protection based merely on a party’s designation as a non-

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reporting expert pursuant to Rule 26(a)(2)(C). In determining the scope of any waiver, the focus
of inquiry is on what information or documents the Rule 26(a)(2)(C) expert has considered in
connection with his proposed testimony. See Pipeline Productions, Inc. v. Madison Companies,
LLC, No. 15-4890-KHV-ADM, 2019 WL 3973955, at *7 (D.Kan. Aug. 22, 2019); City of
Wyoming, Minnesota v. Procter & Gamble Co., No. 15-cv-2101 (JRT/TNL), 2019 WL 245607,
at *5-6 (D.Minn. Jan. 17, 2019); Sierra Pacific, 2011 WL 2119078, at *10.
State Farm designated Garretson to testify in the area of computer forensics regarding the
Rigsbys’ use of State Farm issued computers and access to State Farm’s computer system. The
Court concludes that State Farm’s Rule 26(a)(2)(C) disclosure waived the work product
protection for certain information considered by Garretson in compiling his report, which would
include counsel’s instructions concerning searches of computers assigned to the Rigsbys and
searches of State Farm’s computer system as it relates to the Rigsbys access to the computer
system. Based on the foregoing, the motion is granted to the extent State Farm is compelled to
produce a copy of the Garretson Report, removing any work product redactions concerning the
Rigsbys and their use of or access to State Farm’s computers and computer system. Garretson
has not been designated to testify regarding State Farm computers he analyzed that were not
assigned to the Rigsbys. Thus, the motion to compel is denied in part, because the work product
protection remains valid for any instructions from State Farm’s counsel to Garretson regarding
searches unrelated to the Rigsbys’ use of or access to State Farm’s computers or computer
system.
IT IS THEREFORE ORDERED AND ADJUDGED that the Relators’ [1507] Motion to
Compel is GRANTED in part and DENIED in part, subject to the provisions outlined in this
Order.

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SO ORDERED AND ADJUDGED, this the 12th day of December 2019.
/s/ Robert H. Walker
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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