Raynor v. G4S Secure Solutions (USA) Inc. et al

Filing 37

ORDER after in camera review of the documents produced by Defendants on November 17, 2017, the Court MODIFIES the Magistrates Order and ORDERS Defendants to file a certification as to the following or produce the relevant docu ments to Plaintiff with any accompany disclosures necessary to fulfill its objections under Rule 26 no later than November 21, 2017: The only affidavits considered by Defendants Expert Dr. Sara E. Boyd are the affidavits listed in her Report (Doc. No . 27-2 at 4) and attached to Defendants Summary Judgment Motion (Doc. No. 27) as Exhibits 9, 11, and 13 (Larry Henning, Bill Lindus, and Art Jaskiewicz). The only individuals contacted by Defendants Expert Dr. Sara E. Boyd are the individuals listed in her Report (Doc. No. 27-2 at 3). Michelle Gettinger is not a testifying expert.. Signed by Chief Judge Frank D. Whitney on 11/17/17. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00160-FDW-DSC
E. RAY RAYNOR,

)
)
Plaintiff,
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vs.
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G4S SECURE SOLUTIONS (USA) INC., et )
al.,
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Defendants.
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)
)

ORDER

THIS MATTER is before the Court on Plaintiff’s “Objection and Motion for Review or
Reconsideration by the United States District Court of the Orders of the United States Magistrate
Judge Filed 11/03/17 and the ‘Minute Order’ Entered 11/08/17” (Doc. No. 32). After a telephone
conference on November 14, 2017, the Court granted in part and denied in part Plaintiff’s
Objection and deferred ruling on parts of the Objection until the Court completed an in camera
inspection. As part of the November 15, 2017 Order, the Court ordered Defendants to produce its
privilege log and documents listed on the privilege log. Based on the current record and the Court’s
in camera review the documents produced by Defendants on November 17, 2017, the Court
concludes that a certification from Defendants is necessary to determine if two of the documents
are properly protected from disclosure under the work product doctrine, which was discussed in
the Court’s previous order.
Although the 2010 Amendments to Rule 26 of the Federal Rules of Civil Procedure
clarified that communications between attorneys and testifying experts are subject to protection
from disclosure by the work product doctrine under Fed. R. Civ. P. 26(b)(3)(A), (B),

communications that “identify facts or data that the party’s attorney provided and that the expert
considered in forming the opinions to be expressed” or “relate to compensation for the expert’s
study or testimony” are not protected for disclosure by Federal Rule of Civil Procedure
26(b)(4)(C).
The email from Dr. Boyd dated September 27, 2017, with the subject “Re: Raynor:
Affidavits” could be read to suggest that Defendants’ counsel provided Dr. Boyd affidavit drafts
or affidavits of other individuals beyond those listed in her Report. The attachments in the email
string were not provided in production for in camera review to the Court, which may indicate that
the referenced affidavits were disclosed to opposing counsel. Nevertheless, the certification would
determine whether this email is covered by the work product protection afforded communication
between attorneys and testifying experts under Fed. R. Civ. P. 26(b)(4)(C).
In the email from Dr. Boyd dated September 6, 2017, with the subject “Re: Raynor:
Secondary Witnesses,” Dr. Boyd replies to an email from counsel providing a list of individuals
for Dr. Boyd to contact, which could be read to suggest that Dr. Boyd contacted them and
communicated with these individuals, which included individuals not disclosed in her Report. The
email from counsel to Dr. Boyd was not included in the production, which may indicate that the
email identifying the facts was disclosed to opposing counsel. As a result, certification would also
determine whether the email is covered by the work product protection afforded communication
between attorneys and testifying experts in Fed. R. Civ. P. 26(b)(4)(C).
In addition, the email dated August 15, 2017 from Michelle Gettinger entitled
“Engagement Letter” discusses compensation. Therefore, to the extent, Michelle Gettinger is a

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testifying expert, communications relating to her compensation are not protected under Federal
Rule of Civil Procedure 26(b)(4)(C). Certification would clarify this issue as well.
THEREFORE, after in camera review of the documents produced by Defendants on
November 17, 2017, the Court MODIFIES the Magistrate’s Order and ORDERS Defendants to
file a certification as to the following or produce the relevant documents to Plaintiff with any
accompany disclosures necessary to fulfill its objections under Rule 26 no later than November
21, 2017:
1. The only affidavits considered by Defendants’ Expert Dr. Sara E. Boyd are the affidavits
listed in her Report (Doc. No. 27-2 at 4) and attached to Defendants’ Summary Judgment Motion
(Doc. No. 27) as Exhibits 9, 11, and 13 (Larry Henning, Bill Lindus, and Art Jaskiewicz).
2. The only individuals contacted by Defendants’ Expert Dr. Sara E. Boyd are the
individuals listed in her Report (Doc. No. 27-2 at 3).
3. Michelle Gettinger is not a testifying expert.
IT IS SO ORDERED.

Signed: November 17, 2017

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