Secretary of Labor, U.S. Department of Labor v. Wilmington Trust, N.A. et al

Filing 47

Opinion & Order signed by Judge James S. Gwin on 1/25/19. The Court, for the reasons set forth in this order, denies defendant's motion to compel. (Related Doc. 37 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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R. ALEXANDER ACOSTA,
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U.S. SECRETARY OF LABOR,
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Plaintiff,
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vs.
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WILMINGTON TRUST, N.A., et al.,
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Defendants.
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CASE NO. 1:17-CV-1755

OPINION & ORDER
[Resolving Doc. 37]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this suit, Plaintiff Department of Labor claims that Defendant Wilmington Trust
(“Wilmington”) violated the Employee Retirement Income Security Act.1 Plaintiff expert
James A. Krillenberger has prepared a proposed expert report and rebuttal report.
Wilmington now moves to compel Krillenberger to disclose certain documents and
information.2 For the following reasons, the Court DENIES Defendant’s motion to compel.
I.

Background

The Court has discussed the Krillenberger expert report and its salience to this suit
in an earlier opinion.3 As relevant here, Krillenberger is a business valuation expert. His
proposed opening report and rebuttal report discuss the valuation of Graphite Sales, Inc., a
graphite processing company purchased by Defendant Graphite Sales, Inc. Employee Stock
Ownership Plan in 2011.

1

Codified in part at 29 U.S.C. ch. 18.
Doc. 37. Plaintiff opposes. Doc. 45. Defendant replies. Doc. 46.
3
Doc. 42.
2

Case No. 1:17-cv-1755
Gwin, J.
Wilmington’s January 2, 2019 motion raises five discovery issues. On January 17th,
Plaintiff disclosed additional information. Plaintiff states that this disclosure resolves two of
those discovery issues and partially resolves a third.4 Given this resolution, Wilmington
has three outstanding requests:
1) The identity of companies to which Mr. Krillenberger provided services related
to employee stock ownership plans;
2) Documents related to Mr. Krillenberger’s work concerning the Graphite Sales,
Inc. Employee Stock Ownership Plan that he performed before [Plaintiff] filed
this lawsuit; and
3) Information related to Mr. Krillenberger’s work as an employee stock ownership
plan valuation expert for the Plaintiff, including (a) the number of times he
concluded that a valuation firm had erred in appraising the value of stock to be
purchased by an ESOP, and (b) the number of times he had concluded that an
ESOP paid more than fair market value for the stock at issue.5
II.
A.

Discussion

Krillenberger’s Prior Services to Private Companies

Defendant argues that Rule 26(a)(2)(B)(ii) requires Krillenberger to disclose the
names of previous companies for whom he provided employee stock ownership planrelated services. Because Plaintiff stated in his deposition that his previous work providing
employee stock plan-related services provided (at least in part) the basis for the opinions
expressed in his report,6 Defendant argues that those company names are discoverable
“facts or data considered by the witness” in forming his opinion.7

4

See Doc. 45 at 1.

5

See Doc. 37 at 2.
See Doc. 37-2 at 14. (“Q: But I understand your testimony to be that your work in this case is based upon
your prior experience in the valuation industry, and part of that is the work that you did at [Price Waterhouse
Coopers] for private companies in evaluating them in connection with [employee stock ownership plans],
correct? A: Correct.”).
7
Fed. R. Civ. P. 26(a)(2)(B)(ii).
6

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Case No. 1:17-cv-1755
Gwin, J.
The Court is not persuaded that the underlying information is discoverable under
Rule 26(a)(2)(B)(ii). It is a truism that an expert’s experience in similar cases informs their
opinions. Krillenberger’s acknowledgment of this truism does not, standing alone, entitle
Defendant to everything Krillenberger worked on throughout his career. And as Plaintiff
points out, Rule 26(a)(2)(B)(iv) and (v) specifically designates expert work done within a
specific timeframe as discoverable—not, as Defendant suggests, all engagements that
provided Krillenberger career experience. Defendant is only entitled to “facts or data”
Krillenberger actually consulted in his report, which Plaintiff has disclosed.
B.

Documents Related to Krillinberger’s Pre-Litigation Graphite Sales, Inc. Work

Defendant also argues that Krillenberger must disclose any documents relating to
pre-litigation consultant work he did for Plaintiff.
Plaintiff states that he has partially resolved this request by providing a list of
documents Krillenberger actually considered in forming his opinion, including any prelitigation work. However, Plaintiff argues that Rule 26(b)(4)8 bars this request insofar as
Defendant seeks drafts of Krillenberger’s previous opinions in this case. The Court agrees.
Defendant cites to a 2007 decision in Euclid Chem. Co. v. Vector Corrosion Techs.,

Inc. for the proposition that all material “authored” by the expert is discoverable material
“considered” in his report under Rule 26(a)(2)(b)(ii).9 However, that decision predates the
2010 amendments to Rule 26, which added Rule 26(b)(4)(B) protecting drafts of any report.

8

Fed. R. Civ. P. 26(b)(4).

See Euclid Chem. Co. v. Vector Corrosion Techs., Inc., No. 1:05CV80, 2007 WL 1560277, at *1 (N.D.
Ohio May 29, 2007) (“[C]ourts have interpreted ‘considered’ broadly to include anything authored, received,
read, or reviewed by the expert” (emphasis added)).
9

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Case No. 1:17-cv-1755
Gwin, J.
As the advisory committee notes to this amendment discuss, Rule 26(b)(4) was intended to
narrow the scope of expert discovery and preclude the discovery of expert report drafts.10
C.

Krillenberger’s Other Work As An Expert For Plaintiff

Finally, at his deposition Krillenberger declined to respond to an inquiry regarding
the number of times he opined that a valuation firm had erred in his past work for Plaintiff
Secretary of Labor.11 Defendant requests this information, as well as the number of times
he opined that an employee stock ownership plan overpaid for stock. Defendant argues
that this information is discoverable because it is probative of potential bias.
Plaintiff counters that Defendant is seeking discovery relating to Krillenberger’s
work as a consulting expert, work in which he was not expected to testify. They argue that
Rule 26(b)(4)(D) bars discovery of this information. The rule states that “a party may not . .
. discover facts known or opinions held by an expert . . . who is not expected to be called
as a witness at trial.”12
The Court agrees. Admittedly, the rule is ambiguous. It would undoubtedly apply
if Krillenberger did not testify here. However, it does not specify whether it would protect
a testifying witness like Krillenberger from disclosing facts and opinions in other matters in
which he did not testify.

See Fed. R. Civ. P. 26, advisory committee’s note to 2010 amendment. (“Many courts read the disclosure
provision [of Rule 23(a)(2)] to authorize discovery of . . . draft reports. The Committee has been told
repeatedly that routine discovery into attorney-expert . . . draft reports has had undesirable effects.”).
11
See Doc. 37-2 at 11 (“Q: In how many of the [Department of Labor] ESOP valuation matters that you've
worked on have you come to the conclusion that the valuation firm erred?”).
12
Fed. R. Civ. P. 26(b)(3)(D).
10

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Case No. 1:17-cv-1755
Gwin, J.
The Court does not need to resolve this ambiguity here, because attorney-expert
communications are generally privileged.13 And here, Plaintiff is the holder of the privilege
because the Secretary of Labor is the one who retained Krillenberger in the past matters.
This outcome is consistent with Rule 26(b)’s overall aim: to bar discovery of attorney-expert
communications and encourage frank attorney-expert consultation.14
III.

Conclusion

For the foregoing reasons, the Court DENIES Defendant’s motion to compel.
IT IS SO ORDERED.

s/

Dated: January 25, 2019

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

See Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 19 F.3d 1432 (6th Cir. 1994)
(table) (attorney-client privilege extends to communications made to an attorney’s agent for the purpose of
receiving legal advice); United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (“The assistance of these
agents being indispensable to his work . . . the [attorney-client] privilege must include all the persons who act
as the attorney's agents.”).
14
See Fed. R. Civ. P. 26, advisory committee’s note to 2010 amendments (protecting attorney-expert
communications, because discovery of these communications discouraged frank attorney-expert
collaboration for fear that “disclosure of their collaborative interactions with expert consultant would reveal
their most sensitive and confidential case analyses”).
13

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