Paradigm Biodevices, Inc. v. Viscogliosi Brothers, LLC et al

Filing 124

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the Court concludes that there is no basis to withhold the draft report pursuant to Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure and directs that Plaintiff disclose it to Defendants no later than January 23, 2013. The parties are directed to confer with respect to any other communications with Zolfo Cooper in light of this ruling. If, after the parties confer, there are any further disputes with respect to disclosure, Plaintiff shall promptly submit the relevant material to the Court for its in camera review. (Signed by Judge Jesse M. Furman on 1/17/2013) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SONY
DOCUMENT
ELECTRONIC\! I : IILED
DOC #:_.,.....,_··---:. . DATE

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PARADIGM BIODEVICES, INC.
Plaintiff,

11 Civ. 3489 (JMF)
-v-

MEMORANDUM
OPINION AND ORDER

CENTINEL SPINE, INC.
and JOHN J. VISCOGLIOSI,

a

FILW.=;_,__Q \11

Defendants.

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JESSE M. FURMAN, District Judge:
By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to
produce a draft report prepared by Zolfo Cooper (the "Report"), an entity appointed by an
English court as liquidator of Surgicraft, and other communications with Zolfo Cooper.
(Docket No. 122). Defendants indicated that Plaintiff was withholding the materials on
the ground that Plaintiff had retained Zolfo Cooper as an expert for this litigation and that
Zolfo Cooper had produced the Report in that capacity. Defendants contended that in
determining whether documents should be produced when a person or entity acts in a
dual capacity as an expert and non-expert, however, "any ambiguity as to the role played
by the expert when reviewing or generating documents should be resolved in favor of the
party seeking discovery." (Id. at 2 (quoting B.C.F Oil Ref v. Consolidated Edison Co.,
171 F.R.D. 57, 62 (S.D.N.Y. 1997)).
In its responsive letter, dated January 11, 2013, Plaintiff did not take issue with
this standard. Instead, it maintained that "[t]here is no ambiguity in Zolfo Cooper's role
in connection with the draft report. Zolfo Cooper has been retained as an expert by
Paradigm in this case, the draft report was generated in connection with that engagement,

and, therefore, the draft report is subject to the protection of Fed. R. Civ. P. 26(b)(4)(C)
and should not be ordered produced." (Docket No. 123). By endorsement, the Court
directed Plaintiff to submit the Report for the Court's in camera review. (Id.). On
January 17, 2013, the Court received the Report, which will be maintained under seal for
purposes ofthe record in this case.
Having reviewed the Report in camera, the Court hereby orders that it must be
produced to Defendants no later than January 23, 2013. There are various indications in
the Report that Zolfo Cooper produced the Report in its capacity as liquidator, including:
•

The description of the "status ofwork," which begins by stating that "Peter
Saville and Anne O'Keefe were appointed as Liquidators of Surgicraft following
a request by the [Official Receiver] on behalf of Paradigm, Surgicraft's main
creditor" and includes the following statement: "Our case progression team has
completed its handover with the [Official Receiver]. The team has commenced
work and several tasks are in the process of being completed to ensure
compliance with the Liquidators' duties, including" letters to creditors, fee
undertaking letter, filing tax returns, and petitioning creditors' costs (Report at 6);

•

A section titled "Liquidators' remedies," which identifies claims that the
liquidator could bring under English law (Report at 13-14); and

•

A section titled "Findings and next steps," which includes "[s]ubject to
independent legal advice ... observations in respect of the potential claims which
may be brought by the Liquidator" under English law (Report at 15-18).

By contrast, Plaintiff has pointed to no statement, let alone clear statement, that the
Report was produced in Zolfo Cooper's capacity as an expert retained for purposes of this
litigation; indeed, the Report does not appear to mention that fact at all. At a minimum,
there is "ambiguity as to the role played" by Zolfo Cooper, which calls for disclosure.
B.C.F. Oil Ref, 171 F.R.D. at 62.

For the foregoing reasons, the Court concludes that there is no basis to withhold
the draft report pursuant to Rule 26(b)(4)(C) ofthe Federal Rules of Civil Procedure and
directs that Plaintiff disclose it to Defendants no later than January 23, 2013. The parties
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are directed to confer with respect to any other communications with Zolfo Cooper in
light of this ruling. If, after the parties confer, there are any further disputes with respect
to disclosure, Plaintiff shall promptly submit the relevant material to the Court for its in
camera review.

SO ORDERED.

Dated: January 17, 2013
New York, New York

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