Wenk et al v. O'Reilly et al

Filing 131

ORDER directing production of certain documents within seven days. Signed by Magistrate Judge Terence P Kemp on 4/3/14. (Kemp, Terence)

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.,
Defendants.

Case No.

2:12-cv-474

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
ORDER

In an Opinion and Order filed on March 20, 2014, the Court
set forth some general principles concerning the discovery of
expert witness marginal notations, and directed Defendants to
submit the documents which were the subject of that Order to the
Court, along with all draft and final reports from Defendants’
expert witness, Dr. Ronald C. Hughes.

The Order also gave

Defendants the chance to submit any additional argument they
wished to make.
On March 27, Defendants filed a notice of compliance with
the Court’s order, and also delivered, for in camera review, a
revised privilege log and a number of documents.

The documents

do not appear to the Court to include either the final report
from Dr. Hughes nor any close-to-final drafts, nor has the Court
received any additional written arguments from Defendants.

Given

that the record on this issue was to be supplemented no later
than March 27, 2014, the Court will proceed to make its
determination about the discoverability of these documents on the
basis of the current record.
Most of the submitted documents are either deposition pages
or other documents not prepared by Dr. Hughes and on which he
made notes.

The notes are short, for the most part, and, while

they may in some instances shed some light on his thought
processes, none of them can be legitimately called draft reports.

There are also some emails, primarily about literature in the
field, which also do not appear to be draft reports.

The Court

finds the bulk of these materials to be subject to discovery or
disclosure.
The only exceptions to this ruling fall into two categories.
The documents numbered 1, 468 and 469 do seem to be drafts of at
least a portion of a report.

Those need not be produced.

Additionally, a number of the emails are either communications
with counsel or show that certain other emails were forwarded to
counsel.

The ones which are direct communications with counsel

need not be produced; the others may be redacted (if they have
not already been produced in redacted form) to delete any
evidence that they were forwarded to counsel.
Defendants shall provide the documents they produced to the
Court, subject to the qualifications in the preceding paragraph,
within seven days.
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
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
-2-

United States Magistrate Judge

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