Thieriot et al v. Jaspan Schlesinger Hoffman, LLP et al

Filing 57

ORDER re 45 Motion to Compel denied. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/28/2011. (Tomlinson, A.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ELIZABETH THIERIOT, Individually and as
Trustee of the Elizabeth Thieriot Revocable
Trust, and THE ELIZABETH THIERIOT
REVOCABLE TRUST,
Plaintiffs,
ORDER
- against CV 07-5315 (TCP) (AKT)
JASPAN SCHLESINGER HOFFMAN LLP,
STEPHEN P. EPSTEIN, LISA M. GOLDEN,
ALAN K. HIRSCHHORN, and SETH H.
ROSS,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Pending before the Court is Plaintiffs’ Motion to Compel production of documents which
Defendants’ counsel asserts were inadvertently provided to Defendants’ expert witness. DE 29.
The Court previously deferred ruling on this motion [DE 45] and directed Defendants’ counsel to
provide additional materials for the Court’s review. In response, Defendants provided (1) the
Affidavit of Paul R. Williams, Defendants’ expert witness [DE 48], and (2) the Affirmation of
Paul McDougal [DE 49], attorney for the Defendants in this action, with three emails attached as
Exhibits A, B and C. Additionally, the parties have filed other correspondence raising issues
related to the motion to compel. See, e.g., DE 42, 44, 50-51. The Court has reviewed all of the
documents provided by Defendants pursuant to the directives given in DE 45 as well as the
additional correspondence submitted by each party. For the reasons set forth below, Plaintiffs’
Motion to Compel is DENIED.

I.

THE SWORN STATEMENTS
A.

Affidavit of Paul R. Williams

In his Affidavit, Defendants’ expert, Paul Williams, who was retained to provide an
expert opinion regarding the alleged legal malpractice charged in the Complaint (and who
himself is a lawyer), states that he was first contacted about this case in June of 2009. Affidavit
of Paul R. Williams (“Williams Aff.”), ¶ 2. After an initial conversation with Paul McDougal,
Defendants’ attorney, Williams received a series of e-mails from McDougal with various
documents attached. Williams Aff. ¶ 2. These included the pleadings in this case as well as the
pleadings from the underlying specific performance action, along with court orders and decisions
in both actions, deposition transcripts and other materials submitted to this Court. Id.
According to Williams, the Friday before the July 4, 2009 holiday weekend, he printed
out all of the attachments to the e-mails on a copier in his firm’s office suite and took the
materials home to review. Id. ¶ 3. While sorting out the documents that weekend, Williams
came across “what appeared to be a multi-page letter on Mr. McDougal’s firm letterhead to an
attorney by the name of Leigh Tuccio, at the law firm of Mendes & Mount.” Id. ¶ 4. Williams
believes the letter was titled a “Case Report” or “Case Summary.” Id. After looking at the letter,
Williams concluded that it was a case or status report from McDougal to his client. Williams
states the following:
I presumed the letter would have contained primarily opinions of counsel,
and had not been reviewed by Plaintiff’s expert in preparing his report.
I therefore concluded that it would not be appropriate for me to read it
before rendering an opinion in the case. I do not now recall with certainty
what became of the copy but my best recollection at this time is that I
discarded it at my home at that time. I affirm that at no time did I read
the content of that letter.
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Id. ¶ 5.
In the ensuing weeks, Williams received additional discovery materials from McDougal.
Among these materials were transcripts of the parties’ depositions and exhibits which were
marked at those depositions. Id. ¶ 6. As he read through the transcripts, Williams referred to the
exhibits as they were mentioned during the testimony. In doing so, Williams noticed a
“collection of handwritten notes on several sheets of yellow legal pad paper.” Id. In looking at
the first page of notes, Williams concluded that these were handwritten notes taken during the
course of one or more of the depositions. He presumed the notes were taken by McDougal,
although he did not recognize the handwriting. Since Williams had complete transcripts of the
depositions, he saw no need to attempt to read the handwritten notes and states that he did not do
so. Id. Williams further states that at the conclusion of his own deposition, which took place in
Attorney McDougal’s office, he “left Mr. McDougal’s original files (including deposition
transcripts, exhibits, and any handwritten notes) with Mr. McDougal. At no time before or after
that date did I read the content of these notes.” Id. ¶ 7.
B.

Affirmation of Attorney Paul R. McDougal

Initially, Attorney McDougal confirms that the documents at issue here are a report from
his firm to his clients’ malpractice carrier (the “Report”) and his notes in files containing
deposition transcripts (the “Notes”) that were inadvertently given to defendants’ expert, Paul R.
Williams.1 Affirmation of Paul R. McDougal (“McDougal Aff.”) ¶ 2. Attorney McDougal had a
conversation with Williams on June 30, 2009 regarding this case and the need for an expert to
provide an opinion and a report. At that time, McDougal discussed with Williams the nature of
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The Report and Notes were sent to the Court by overnight mail for an in camera review.
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the case, the allegations in the complaint, the defendants’ position and the opinions of plaintiffs’
legal expert. McDougal Aff. ¶ 3. That same day, McDougal e-mailed Williams the complaint
and the expert reports and other materials that plaintiffs’ counsel had e-mailed to McDougal
earlier in the month. Id. The next day, Williams sent McDougal an e-mail setting forth his
preliminary impressions of the case. Id. ¶ 4. The e-mail is attached as Exhibit A to McDougal’s
Affirmation and has been produced to the plaintiffs.
On July 2, 2009, McDougal e-mailed Williams 14 additional documents. One of these
was the Report at issue here. Id. The Report was e-mailed in PDF format as an attachment under
the heading “Initial Evaluation Memo.pdf.” Id. The e-mail is attached as Exhibit B to the
McDougal Affirmation and has also been produced to the plaintiffs.
According to McDougal, he and Williams never discussed the opinions in the Report
“before Williams was able to form his own independent opinions as expressed in his expert
report.” Id. ¶ 5. McDougal acknowledges that he and Williams did discuss factual items found
in the Report, but adds that “these were all items that were referred to in other documents that
had been delivered to both experts.” Id. The Report is a preliminary evaluation of the case
which summarizes the facts and proceedings of the instant legal malpractice action, the
underlying real estate transaction and specific performance litigation, as well as the allegations in
the Complaint. The Report also states an opinion as to the viability of each of the claims of
malpractice and discusses the defenses. Id. McDougal has no recollection of the Report ever
being returned to him. After Williams testified that he had received but not read the Report and
had returned it, McDougal spoke to Williams and advised that he had no recollection of the
Report being returned to him. Id. ¶ 6. Williams told McDougal during that conversation that he
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believed the copy of the Report was discarded after Williams printed it and that he did not return
it to McDougal. Id.
As to the Notes, McDougal states that Williams e-mailed him on July 13, 2009, seeking
copies of all the deposition transcripts that had been referenced in plaintiffs’ expert report. Id.
¶ 7. A copy of that e-mail is attached to the McDougal Affirmation as Exhibit C. McDougal
sent the transcripts of three defendants by e-mail the next day, July 14. Williams was not able to
download the transcripts because of the format in which they were sent. In e-mails exchanged on
July 14 and 15, 2009, McDougal and Williams discussed meeting in McDougal’s office to get
copies of the transcripts, the record on appeal and the appellate briefs. Id. ¶ 8. Williams went to
McDougal’s office on July 15 and picked up the materials. Id. ¶ 9. McDougal gave Williams the
manila folders in which the individual transcripts were filed. Included in those files were
McDougal’s Notes taken at the depositions and the exhibits which had been marked at the
depositions. Id. McDougal states that he and Williams had no conversations concerning the
Notes. Id. ¶ 10. In fact, they did not talk about the Notes until after Williams was deposed by
Plaintiffs’ counsel. The Notes were returned to McDougal on the date of Williams’ deposition,
in front of Plaintiffs’ counsel during the course of the deposition. Id. ¶ 11. Apparently, there
were some inquiries made about the Notes during Williams’ deposition. Id.
II.

DISCUSSION
Rule 26(a)(2) provides that
(B) Written Report. Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written report – prepared and
signed by the witness – if the witness is one retained or specially
employed to provide expert testimony in the case of one whose duties as

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the party’s employee regularly involve giving expert testimony. The
report must contain:
*

*

*

(ii) The data or other information considered by the witness in
forming them . . .
It is well established that Rule 26 requires “disclosure of any document considered by a testifying
expert, whether or not the document is otherwise privileged and regardless of whether the expert
expressly relies upon the document in formulating his or her opinion.” Amway Corp. v. Proctor
& Gamble Co., 1:98 cv 726, 2001 WL 1877268, at *1 (W.D. Mich. Apr. 17, 2001) (citing cases).
In other words, experts are obligated to disclose information that was relied upon in forming their
opinions, as well as “information that was not relied upon, but was considered by the expert.”
Schwab v. Philip Morris USA, Inc., No. 04-CV-1945, 2006 WL 721368, at *2 (E.D.N.Y.
Mar. 20, 2006) (citing Constr. Indus. Servs. Corp. v. Hanover Ins. Co., 206 F.R.D. 43, 50
(E.D.N.Y. 2001)) (“Documents and information disclosed to a testifying expert in connection
with his testimony are discoverable by the opposing party, whether or not the expert relies on the
documents and information in preparing his report.”); see also B.C.F. Oil Ref. v. Consol. Edison
Co., 171 F.R.D. 57, 65 (S.D.N.Y. 1997) (following the 1993 amendments, an expert must
disclose “all material considered by him, not just material ‘known’ by him”) (emphasis in
original).
Plaintiffs rely on Weil v. Long Island Sav. Bank FSB, 206 F.R.D. 38 (E.D.N.Y. 2001) and
Construction Industry Services Corp. for the proposition that the 1993 amendments to Fed. R.
Civ. P. 26(a)(2)(B) broadened the communications with a testifying expert that must be
disclosed. That assessment is correct and the reliance is proper – as far as it goes. Significantly,
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the factual underpinnings of Weil are distinguishable. There, the defendant bank moved to
compel production of the comments of plaintiff’s counsel on drafts of the expert report. Weil,
206 F.R.D. at 38. Judge Wall ordered the plaintiffs to produce all documents on their privilege
log which represented materials communicated to the testifying experts by the attorneys and
considered by those experts in forming their opinions. Id. at 43 (emphasis added). Construction
Industry Services Corp., decided by Judge Wall two months after Weil, is not to the contrary and
is equally distinguishable on its facts. There, Judge Wall held that nothing before the court
demonstrated with clarity how the individual who was proffered as a consultant prior to being
retained as a damages expert could not have considered, on some level, his comprehensive
knowledge of all confidential information regarding the lawsuit. Constr. Indus. Servs. Corp.,
206 F.R.D. at 52-53.
The burden of showing that an expert did not consider certain documents in forming his
opinion rests with the party resisting the disclosure. See Schwab, 2006 WL 721368, at *3. This
burden “cannot generally be satisfied by the expert’s representations alone.” Id. “Although an
expert’s representation as to whether or not he considered a document is not controlling, his
testimony that he did not receive, read, review or author a document will negate discovery absent
persuasive evidence to the contrary.” Euclid Chem. Co. v. Vector Corrosion Technologies, Inc.,
No. 1:05 CV 80, 2007 WL 1560277, at *4 (N.D. Ohio May 29, 2007) (citing Amway, 2001 WL
1877 260, at *1). The burden can be met when the party opposing disclosure provides the court
“with affidavits and deposition testimony ‘clearly establishing’ that the testifying witness never
read, reviewed, or considered the subject documents in forming his opinions.” Schwab, 2006

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WL 721368, at *3 (quoting United States Fidelity & Guar. Co. v. Braspetro Oil Servs. Co., No.
97 Civ. 6124 , 2002 WL 15652, at *7 (S.D.N.Y. Jan. 7, 2002)) (citation omitted).
Here, Williams’ affidavit specifically states his observation that the document appeared to
be a case report from McDougal to the carrier and Williams “presumed” that the letter would
have contained opinions of counsel which it would not be appropriate for him to read before he
rendered an opinion in this case. Williams Aff. ¶ 5. As to the Notes, Williams confirmed that he
was already in possession of the complete transcripts of the depositions at the time he first saw
the Notes and therefore saw no need to attempt to read the handwriting, which he did not
recognize. The Notes were returned to McDougal during Williams’ deposition. Id. ¶¶ 6, 7. The
Court further points out that Paul Williams, as an attorney, is also an officer of the Court.
Plaintiffs have not met their burden here because they have produced no “persuasive evidence to
the contrary.” Euclid Chem. Co., 2007 WL 1560277, at *4. I therefore find that Williams’
sworn statement shows that he did not consider the Report or the interview Notes and, as a result,
those materials are outside the scope of Rule 26(a)(2)(B). See Langbord, 2008 WL 47 8174, at
*2 (expert’s sworn statement demonstrates that he did not consider the drafts and interview notes
in formulating his opinion, thus placing those materials outside the scope of Rule 26(a)(2)(B));
see also Aniero Concrete Co., Inc. v. New York City Sch. Constr. Auth., 94 Civ. 9111, 2002 WL
257685, at *2 (S.D.N.Y. Feb. 22, 2002) (party could avoid disclosure of documents “by showing
that its experts had not ‘considered’ the Contested Documents in the course of forming their
opinions”) (emphasis added); Euclid Chemical Co., 2007 WL 1560277, at *4 (“the courts have
embraced an objective test that defines ‘considered’ as anything received, reviewed, read, or
authored by the expert, before or in connection with the forming of his opinion . . . .”) (emphasis
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added); Synthes Spine Co. v. Walden, 232 F.R.D. 460, 464 (E.D. Pa. 2005) (“[P]laintiff must
disclose all materials, regardless of privilege, that plaintiff’s expert generated, reviewed, reflected
upon, read, and/or used in formulating his conclusions, even if the materials were ultimately
rejected by the expert in reaching his opinions.”) (emphasis supplied). By contrast, the Report to
defendants’ carrier in the instant case, the disclosure of which both sides concede was
inadvertent, was not considered by the defendants’ expert in forming his opinions as set forth in
his affidavit and as addressed at his deposition.
Defendants have presented the Court with an affidavit from the expert and an affirmation
from counsel satisfactorily establishing that the testifying expert never read, reviewed or
considered the subject documents in forming his opinion. “In such circumstances, the rationale
for a broad reading of the disclosure requirements of Rule 26(a)(2) disappears.” Amway Corp.,
2001 WL 1877268, at *1. As the court in Amway observed,
[i]f an expert witness has read a document provided by the client,
effective cross-examination is guaranteed by finding a waiver of
privilege, even if the testifying expert eschews any formal “reliance” on
the document. Where, however, the witness clearly did not read or
review the documents, the purpose for the rule in favor of waiver
vanishes.

Id. (citing Johnson v. Gmeinder, 191 F.R.D. 638, at 640 (D. Kan. 2000) (“Without proving
disclosure, plaintiffs cannot prove waiver.”).
Having reviewed the affirmation of Defendants’ counsel and the affidavit of the expert
witness [DE 48, 49] as well as the documents provided for an in camera inspection, and in
accordance with Amway Corp., which this Court finds persuasive, I am DENYING Plaintiff’s

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Motion to Compel the production of the specific documents that Defendants’ counsel produced
to the expert witness.
Additionally, I have reviewed the parties’ arguments regarding the timeliness of
Defendants’ submissions of supplemental materials [DE 50, 51] and I am accepting these
submissions. Further, after considering the assertions and arguments posed by Plaintiffs’ counsel
regarding the expert’s handling of documents [DE 50], I find that the actions of Defendants’
expert do not constitute “spoliation” under current Second Circuit case law based on all of the
circumstances here. Defendants cannot be held responsible on a spoliation theory where
Defendants had no duty to produce the Report and Plaintiffs were not entitled to disclosure of the
Report in the first instance. Moreover, Defendants’ counsel has provided an affirmation, under
penalty of perjury, that a copy of the Report is in his files and on his computer – and has been
submitted to the Court. See Supplemental Affirmation of Paul McDougal [DE 51], ¶ 4.

SO ORDERED.
Dated: Central Islip, New York
September 28, 2011
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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