Wenk et al v. O'Reilly et al

Filing 127

OPINION AND ORDER: If Defendants wish to continue to withhold the expert witness notes in question, they are to submit those notes to the Court in camera w/in seven (7) days of the date of this order, or otherwise arrange to disclose the notes to Plaintiffs in a timely fashion. Signed by Magistrate Judge Terence P Kemp on 3/20/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Peter Wenk, et al.,

:

Plaintiffs,

:

v.

:

Edward O'Reilly, et al.,

Case No.

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Defendants.

2:12-cv-474

:
OPINION AND ORDER

If a testifying expert witness makes notes in the margins of
depositions or other documents as he or she reviews them, are
those notes discoverable?

That is the question posed by the

parties’ memoranda regarding discovery from one of Defendants’
experts, Dr. Ronald C. Hughes.

For the following reasons, the

Court’s answer to that question is a qualified “probably,” but
the Court will defer providing a definitive answer until the
factual record is more well-developed.
I.
For a more complete description of the nature of this case,
the Court refers to Judge Marbley’s recent Opinion and Order
granting in part and denying in part the parties’ cross-motions
for summary judgment (Doc. 124).

See Wenk v. O’Reilly, 2014 WL

971939 (S.D. Ohio March 12, 2014).

Although it is impossible to

summarize the facts in a few sentences, as Judge Marbley noted,
“Plaintiffs commenced this action on June 4, 2012, alleging First
Amendment retaliation and violations of substantive Due Process
against [employees of their daughter’s school]” based on a report
of child abuse made by the school to Franklin County Children’s
Services.

Id. at *6.

Judge Marbley held that factual disputes

exist about key elements of this claim, including whether the
report was false, whether the school officials actually believed
they were required by law to make it, and whether they were

motivated to make the report (or to include many of the comments
in it) by what they perceived to be the Wenks’ aggressive
behavior with respect to the way in which the school was dealing
with their daughter’s education.
With respect to the discovery matter which is the subject of
this Opinion and Order, the facts which the parties have
presented to the Court are sparse but apparently undisputed.
Defendants retained Dr. Hughes as one of their experts,
disclosing his identity under Fed.R.Civ.P. 26(a)(2) and proposing
to use him to testify at trial.

They also made the other

disclosures required under that rule, including providing the
Wenks with a copy Dr. Hughes’ report.

The Wenks then served

discovery, asking about every document Dr. Hughes reviewed or
created which was relevant to his opinion, and requesting any
notes he made.
Among the documents Dr. Hughes reviewed are depositions of
other witnesses in this case.

He took notes while reading them

and also made some marginal notes on the transcripts.

Defendants

did not provide these documents in response to the discovery
requests.

Rather, they objected, claiming that such notes are

“draft reports,” which are specifically protected from disclosure
under the current version of Fed.R.Civ.P. 26(b)(4)(B)(“Rules
26(b)(3)(A) and (B) protect drafts of any report or disclosure
required under Rule 26(a)(2), regardless of the form in which the
draft is recorded”).

Alternatively, Defendants argue that an

expert need only produce the “facts and data” underlying the
expert’s opinion, and these kinds of notes are neither facts nor
data.

The Wenks, in turn, assert that courts have routinely

ordered the production of experts’ notes since Rule 26 was
amended, and that the purpose of the amendment - to protect an
attorney’s mental impressions - is not furthered by shielding an
expert’s own notes from production.
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These arguments set the

stage for the legal issue presented.
II.
Rule 26(b)(4)(B), part of a set of 2010 amendments to the
Rules of Civil Procedure, is clear as far as it goes.

It exempts

“drafts of any report or disclosure” required to be made by a
testifying expert “regardless of the form ....”

Rule

26(a)(2)(B)(ii), which was amended at the same time, also seems
fairly clear, requiring, as part of expert witness disclosures,
the production of “the facts or data considered by the witness in
forming [expert opinions]....”

But are notes made by an expert

as he or she reviews the documents upon which an opinion will be
based actually “draft reports” in some form or other, and are
they part of the “facts or data” that the expert has relied on?
The language just quoted from amended Rule 26 does not directly
answer either of these questions.
As a secondary source of interpretation, the Advisory
Committee Notes are usually very helpful in resolving issues
surrounding the meaning and intent of the Rules of Civil
Procedure.

It is well-established that some courts, by

interpreting the prior version of Rule 26 to require experts to
produce all of the drafts of their reports and any communications
they had with counsel, created numerous issues, not the least of
which were making experts reluctant to commit any opinion but the
final one to paper (or the electronic equivalent of paper) and
forcing experts and counsel to communicate orally so that the
details of their discussions would not have to be revealed to
opposing parties.

The Advisory Committee Notes to the 2010

amendments talk about these problems in considerable detail.
As an overall description of the changes made to this
subsection of Rule 26, the Notes state that the amendments
“provide work-product protection against discovery regarding
draft expert disclosures or reports ....”
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The motivation for the

change was, according to the Advisory Committee, frequent
complaints “that routine discovery into attorney-expert
communications and draft reports has had undesirable effects”
which included increased costs, the need to hire a second set of
non-testifying experts who could be spoken to freely without fear
of disclosure, and impeding communication between counsel and
testifying experts.

These considerations also explain the change

made to Rule 26(a)(2)(B), which formerly mandated disclosure of
the “data or other information” relied on by testifying experts,
but which now requires disclosure only of “facts or data” which
the expert considers when formulating the report.

Courts could,

and did, construe the phrase “other information” to include draft
reports and communications with counsel, but, according to the
Notes, should not do so after that phrase was written out of the
Rule.
Still, the Advisory Committee realized that any effort to
cut back on the amount of information accompanying an expert
report could have negative implications to the fairness of the
trial process.

Consequently, it took pains to distinguish

between “theories and mental impressions of counsel,” which ought
not to be subject to disclosure or discovery, and “facts or data”
on the other hand, a phrase which should be “interpreted broadly
to require disclosure of any material considered by the expert,
from whatever source, that contains factual ingredients.”

As the

Notes to subdivision (b)(4)(C) explain, that rule “is designed to
protect counsel's work product and ensure that lawyers may
interact with retained experts without fear of exposing those
communications to searching discovery” but should not be
interpreted to “impede discovery about the opinions to be offered
by the expert or the development, foundation, or basis of those
opinions....”

As one example of the breadth of the discovery

still permitted, the Advisory Committee cited “the expert's
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testing of material involved in litigation, and notes of any such
testing....”

The cases which both parties cite in support of

their positions are more easily understood in light of this
backdrop.
The only Court of Appeals decision either side identifies
(and they both cite this case) is Republic of Ecuador v. Hinchee,
741 F.3d 1185 (11th Cir. 2013).

There, the District Court had

compelled production of certain documents prepared by Dr.
Hinchee, who had served in a related case as an expert witness
for Chevron Corporation.

Forty documents which Chevron and Dr.

Hinchee withheld from production were submitted to the District
Court for in camera review; the District Judge ordered 39 of them
to be produced, excepting from the order only a draft report.
The balance of the documents were described as “Dr. Hinchee’s
notes” and email communications between him and other experts or
with non-lawyers on Chevron’s staff.

Id. at 1188.

Chevron first argued that both the emails Dr. Hinchee
exchanged with non-lawyers who were not members of his own staff
and his personal notes deserved work product protection.

The

Court of Appeals rejected this reading of Rule 26, finding that
the language added by the 2010 amendments “reflects a calculated
decision not to extend work-product protection to a testifying
expert's notes and communications with non-attorneys” and
limiting such protection to “[d]raft expert reports and
attorney-expert communications ....”

Id. at 1191-92.

As an

alternative argument, Chevron contended that the change in the
language of Rule 26(a)(2)(from “data or other information” to
“facts or data”) protected these documents from disclosure.

The

Court of Appeals read that language, though, as simply insuring
that there was no conflict between what Rule 26(a)(2) required to
be disclosed and what Rule 26(b)(4)(C) protected from discovery
or disclosure - in other words, that the change in Rule 26(a)(2)
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was meant to redefine the disclosure requirement to eliminate any
reference to draft reports or attorney-expert communications.
The Court saw no intent on the part of the drafters of the 2010
amendments, nor any language in those amendments, which was
designed to “shield the theories of Dr. Hinchee and his fellow
testifying experts” from disclosure or discovery.

Id. at 1195.

The District Court’s order compelling disclosure of both the
emails and the personal notes was therefore affirmed.
The litigation which spawned the Hinchee decision has
produced additional case law on this issue.

In Republic of

Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014), the notes of two
other Chevron experts were ordered to be produced, and Chevron
also appealed that order, raising the same arguments it presented
in Hinchee.

The Ninth Circuit Court of Appeals, reviewing the

same textual language and Advisory Committee Notes laid out
above, concluded that “the driving purpose of the 2010 amendments
was to protect opinion work product — i.e., attorney mental
impressions, conclusions, opinions, or legal theories—from
discovery” and that “[t]he protections for draft reports and
attorney-expert communications were targeted at the areas most
vulnerable to the disclosure of opinion work product.”
870.

Id. at

Because Chevron’s argument was premised upon the existence

of work-product protection for the experts’ own notes, the Court
of Appeals rejected that argument and concurred with Hinchee and
a third case involving the same issues, Republic of Ecuador v.
For Issuance of a Subpoena Under 28 U.S.C. Sec. 1782(a), 735 F.3d
1179, 1187 (10th Cir. 2013), which also held that work-product
protection did not extend to materials prepared by expert
witnesses and that the phrase “facts and data” should be
interpreted broadly to include any documents containing “factual
ingredients,” which, according to the court, “include far more
than materials made up solely of ‘facts or data.’”
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These three cases seem to this Court to be fully consistent
with the language of Rule 26 and the intent of the drafters of
the 2010 amendments, as expressed in the Advisory Committee
Notes.

They stand for two propositions: that notes made by an

expert witness are not work product, and that such notes
typically contain “factual ingredients” and are therefore
included in the type of “facts or data” an expert has considered
in formulating opinions and therefore must disclose.

Here,

Defendants do not appear to be advancing a work product theory,
so the first of these propositions is not directly germane to
this case.

Defendants do, however, argue that Dr. Hughes’ notes,

which they describe as including “his observations about and the
analysis of facts and data that came directly from other sources,
such as deposition transcripts, exhibits, and industry articles”
do not “themselves contain independent facts or data” and are not
subject to disclosure under Rule 26(a)(2)(B)(ii).

Defendants’

Memorandum, Doc. 117, at 7.
That argument is inconsistent with the Advisory Committee
Notes and the three Court of Appeals cases, however.

Defendants

here, as Chevron did in those cases, urge a narrow reading of the
phrase “facts or data” appearing in Rule 26(a)(2), but the intent
of the drafters was just the opposite.

Apart from shielding

attorney work product from disclosure, there is no reason to
prevent an opposing party from finding out how an expert arrived
at his or her conclusions, including discovering the thought
processes which led the expert there.

Drafts are protected

because, as noted above, the drafting process ordinarily entails
communications between the expert and counsel and usually
involves feedback from counsel, a process which is likely to
include revelation of attorney work product.

Notes made

independently by an expert do not fall into that category, and
notes which contain observations about facts or analyses of facts
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have “factual ingredients,” making them subject to disclosure or
discovery.

Although the Court has not seen these notes, from

Defendants’ descriptions of them, they appear to qualify as
“facts or data,” as that phrase is read broadly, and cannot be
withheld from production on that ground.
The only case cited by Defendants on this precise point,
D.G. ex rel. G. v. Henry, 2011 WL 1344200 (N.D. Okla. April 8,
2011), is not only inconsistent with the later authorities the
Court has found persuasive, but its statement that “notations or
highlights on the case files do not constitute facts or data and
do not need to be provided under Fed.R.Civ.P. 26(a)(2)(B)(ii)” is
dictum because, in that case, Plaintiffs had told the court “that
there are no notations or highlights” and the Court made no
contrary finding.

Id. at *2.

Given that the Henry court also

provided no reasoning before making that categorical statement,
even if that were the court’s holding, this Court would not be
inclined to adopt it.
In addition to relying on Henry, Defendants attempt to
distinguish Hinchee on the grounds that the notes which the court
ordered to be produced in that case were “personal in nature, for
the expert’s own use,” apparently attempting to differentiate
such notes from the type of notes made by Dr. Hughes.
Defendants’ Reply, Doc. 119, at 3.

See

However, the Court does not

read the District Court’s decision in Hinchee (In re Application
of Republic of Ecuador, 2012 WL 5519611 (N.D. Fla. Nov. 2, 2012))
quite the same way.

There, the District Judge described the

notes in question as “notes on matters of substance made by Dr.
Hinchee apparently for his own use” including “handwritten notes
on other materials” which had been provided to him in connection
with his work as an expert witness.

Id. at *2.

It is difficult

to equate the concept of notes made by an expert “for his own
use” in the litigation with “personal” notes - clearly, they are
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not the same - and notations made on other materials are
precisely the same type of notes at issue here.

There is nothing

“personal” about such notes other than the fact that they were
apparently made, both in Hinchee and here, by the expert without
express direction to do so by counsel, but both clearly related
to the subject of the litigation rather than some personal and
unconnected matter - otherwise, they would be irrelevant.
Further, Defendants’ assertion that the notes made by Dr. Hughes’
constituted a “draft” of his expert report means that they were
considered by him in formulating his opinion, so the two
prerequisites for disclosure under Rule 26(a)(2)(B)(ii) - that
the notes are “facts or data” and they were “considered” by the
expert in the opinion-forming process - have been satisfied here.
Defendants’ other argument is that these notes are properly
viewed as a “draft report.”

Citing to In re Application of

Republic of Ecuador, 280 F.R.D. 506 (N.D. Cal. 2012), which, on
appeal, was Republic of Ecuador v. Mackay, supra, Defendants
contend that any notes used by an expert to compile and prepare
the final expert report are the type of “draft reports” which
Rule 26(b)(4)(B) protects from discovery “regardless of the form
in which the draft is recorded.”
As to the issue of whether such notes constitute “draft
reports,” the Ecuador court found Chevron’s attempt to
characterize their experts’ notes that way to be unsupported.
The District Court apparently reviewed the notes and found that
“at most, the notes appear to compile information that might
later be used in preparing to testify or in compiling a report or
might never be used at all.”

Id.

That court found that they

simply were not part of a draft report and were not protected
from disclosure by Rule 26(b)(4)(B).
There is not an abundance of case law which helps the Court
distinguish between notes which are simply a compilation of
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information for possible later use in a case, and notes which
truly are part of the draft of a final expert report.

There is a

tangential reference to notes made by a testifying expert in
Graco, Inc. v. PMC Global, Inc., 2011 WL 666056, *14 (D.N.J. Feb.
14, 2011), where an expert was ordered to produce “notes of ...
testing,” but that seems simply to be a reference to the same
language found in the Advisory Committee Notes.

A more direct

statement can be found in Dongguk University v. Yale University,
2011 WL 1935865, *1 (D. Conn. May 19, 2011), where the court said
that “as a general matter, an expert's notes are not protected by
26(b)(4)(B) or (C), as they are neither drafts of an expert
report nor communications between the party's attorney and the
expert witness.”

The Court has been unable to locate any cases,

however, which attempt to formulate a test to be used to
distinguish “notes” from “drafts,” and perhaps it is appropriate
that there be no bright-line standard, since most cases will turn
on their facts and this appears to be a fact-dependent issue.
As explained more fully below, the Court will require
Defendants to submit the notes in question for in camera review
before making a decision about whether they can be legitimately
characterized as “draft reports.”

However, explaining some

general principles may assist Defendants in deciding either to do
so or to conclude that it may not be worth the effort.
Experts review many things in preparation for writing a
report.

In a case where any kind of testing, analysis or

observation of a tangible item is involved - for example, testing
the braking system of a vehicle to see if it is working properly,
or analyzing the chemical composition of a medication - the notes
taken by the expert during that procedure are clearly not “draft
reports.”

If it were otherwise, everything an expert writes

down, no matter when in the opinion-forming process that occurs,
and no matter what the reason, would qualify as a “draft.”
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That

is simply not consistent with either the language of the Advisory
Committee Notes or with the concept that full discovery of the
bases of expert opinions (setting aside attorney work product) is
the norm and furthers the search for the truth.
It is not immediately apparent why an expert’s notes in a
case not involving a tangible item should be viewed differently.
The type of note-taking which typically occurs in that kind of
case seems to be the equivalent of what an engineer does when,
for example, he or she observes a machine or a mechanical process
and jots down notes or preliminary observations while doing so.
In a case where the factual matter to be examined and analyzed
consists of witness statements, depositions, or written policies,
why should the notes or preliminary observations made by a
reviewing expert be treated differently?

And there is a

substantial risk in interpreting the concept of “draft report”
too broadly.

While an expert may legitimately believe that every

thought which occurs to him or her from the beginning of the
assignment onward is a nascent report or portion of one, if the
law makes all of these materials drafts, a substantial portion of
the expert’s actual thought process will be shrouded in secrecy,
and opposing parties will have to rely on the expert to recount
that process fully and truthfully without having the means to
test the expert’s narrative through contemporaneously-created
notes.

Finally, it is important to remember that the protection

against disclosure in the context of draft reports and
communications with counsel is designed not to shield the
expert’s reasoning process from discovery, but to guard against
the disclosure of attorney work product and to facilitate the
communication process between attorney and expert.

Having to

turn over notes taken by an expert which did not result from or
reflect any attorney-driven communications does not implicate the
work product doctrine, and the fact that such notes may be
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subject to discovery does not appear to impact the attorney’s
ability to communicate effectively with the expert as the
drafting process gets underway in earnest.
This is not to say that in order to obtain protection of an
expert’s written product as a draft report, that writing must be
so labeled or be in any particular format.
explicitly says otherwise.

Rule 26(b)(4)(B)

But there must be a reasoned and

principled way to draw the connection between a written note and
the final expert report which protects actual drafts but allows
disclosure of the preparatory material which is used to make a
draft, and it is difficult to draw that line in the absence of
any salient facts.

To answer the precise question presented in

this case - not the larger legal question, but simply to decide
if the notes made by Dr. Hughes are really drafts of his report the Court would need to see his final report, to see his notes,
and to determine how significant the notes appear to be in the
context of his final set of opinions.

It would also help the

Court to know how well-formulated the notes are, and how much
time elapsed between when he took the notes and when he began to
draft an opinion in earnest.

It will also be useful to explore

whether the notes appear in any subsequent or final draft in
substantially the same language, or whether they appear simply to
have formed the basis for Dr. Hughes’ conclusions in a manner
similar to other materials - like the deposition testimony or the
content of other documents he reviewed - which cannot be
considered “draft reports.”
Ordinarily, the only way to accomplish all of this is to
require an in camera inspection, accompanied by whatever
arguments Defendants might want to make about why these
particular notes ought to be deemed drafts of Dr. Hughes’ final
report.

In the absence of any other resolution of the issue

presented, that is what the Court will order.
-12-

It may be, however, that having received some guidance from
the Court, Defendants will concede the issue, knowing that they
face a difficult road ahead of them in persuading the Court that
notes which are almost presumptively not “drafts” might be viewed
as such here.

If they choose that route, they should so advise

the Court and arrange to make the required disclosures.

If not,

the Court will conduct an expeditious review of the various
documents needed and will provide a prompt decision.
III.
For the reasons set forth above, the Court directs
Defendants, if they wish to continue to withhold the notes in
question, to submit those notes to the Court in camera within
seven days of the date of this order.

They shall also submit a

copy of Dr. Hughes’ final report, any drafts of that report (also
in camera), and any additional argument they wish to make about
the question of whether the notes are a “draft report,” focusing
on the factors set forth in the preceding section.

Otherwise,

they shall arrange to disclose the notes to Plaintiffs in a
timely fashion.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
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reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

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