INMAN v. TECHNICOLOR SA et al

Filing 302

MEMORANDUM ORDER granting 296 plaintiff's motion for leave to reply to third-party defendant Varian's response to plaintiff's motion to compel all Completed Reports of Mr. Ludwell A. Sibley and plaintiff's accompanying request t hat the court conduct an in camera review of the reports in its determination of plaintiff's motion to compel. The court has considered the additional briefing in 296 and it has reviewed the sealed, disputed documents in making its ruling on plaintiff's motion to compel. And further Ordering that 288 plaintiff's motion to compel is denied. Signed by Judge David S. Cercone on 8/27/15. (kak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RYAN C. INMAN,

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Plaintiff,
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v.
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GENERAL ELECTRIC COMPANY,
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RICHARDSON ELECTRONICS, LTD,
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MCM ELECTRONICS, and CBS
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CORPORATION
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Defendants.
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------------------------------------)
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RICHARDSON
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ELECTRONICS, LTD,
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Third Party Plaintiff,
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v.
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VARIAN INC., VARIAN MEDICAL
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SYSTEMS, INC. and VARIAN
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SEMICONDUCTOR EQUIPMENT
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ASSOCIATES, INC., as successors-in-interest
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to VARIAN ASSOCIATES, INC.
)
)
Third Party Defendants
)

2:11cv666
Electronic Filing

MEMORANDUM ORDER
AND NOW, this 27th day of August, 2015, upon due consideration of plaintiff's motion
for leave to reply to third-party defendant Varian's response to plaintiff's motion to compel all
Completed Reports of Mr. Ludwell A. Sibley and plaintiff's accompanying request that the court
conduct an in camera review of the reports in its determination of plaintiff's motion to compel,
IT IS ORDERED that [296] the motion be, and the same hereby is, granted. The court has
considered the additional briefing in [296] and it has reviewed the sealed, disputed documents in
making its ruling on plaintiff's motion to compel; and

IT FURTHER IS ORDERED that upon due consideration of plaintiff's motion to compel
all completed reports of Mr. Ludwell A. Sibley, the Varian third-party defendants' response
thereto and plaintiff's reply brief and sealed submissions, IT IS ORDERED that [288] the motion
be, and the same hereby is, denied.
The 2010 amendments to Federal Rule of Civil Procedure Rule 26 provide in pertinent
part:
Trial-Preparation Protection for Draft Reports or Disclosures. 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.
Fed. R. Civ. P. 26(b)(4)(B). They further provide:
Trial-Preparation Protection for Communications Between a Party's Attorney and
Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the
party's attorney and any witness required to provide a report under Rule 26(a)(2)(B),
regardless of the form of the communications, except to the extent that the
communications:
(i)

relate to compensation for the expert's study or testimony;

(ii)

identify facts or data that the party's attorney provided and that the expert considered
in forming the opinions to be expressed; or

(iii)

identify assumptions that the party's attorney provided and that the expert relied on in
forming the opinions to be expressed.

Id. at 26(b)(4)(C). These amendments were added to "to provide work-product protection
against discovery regarding draft expert disclosures or reports and -- with three specific
exceptions -- communications between expert witnesses and counsel." Advisory Committee
Notes, 2010 Amendments.
The subsections were revised to protect attorney work product in the area of draft expert
reports and communications between counsel and a retained expert because "'draft reports and
attorney-expert communications' are 'areas most vulnerable to the disclosure of opinion work
product.'" Windowwizads, Inc. v. Charter oak Fire Ins. Co., 2015 WL 1402352 (E.D. Pa. March
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26, 2015) (quoting Republic of Ecuador v. Mackay, 742 F.3d 860, 870 (9th Cir.2014) and citing
Fed. R. Civ. P. 26 Advisory Committee Notes, 2010 Amendments (the provisions were added "to
protect counsel's work product and ensure that lawyers may interact with retained experts
without fear of exposing those communications to searching discovery")). Notwithstanding this
protection "Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered
by the expert or the development, foundation, or basis of those opinions." Id. (quoting Fed. R.
Civ. P. 26 Advisory Committee Notes, 2010 Amendments). If work-product privilege exists, the
opposing party may obtain access to them only if it establishes that "it has substantial need for
the materials to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means." Id. (citing Fed. R. Civ. P. 26(b)(3)(A)(ii)).
Here, the entirety of the information submitted on the subject supports a finding that the
disputed documents are "draft reports." Contrary to plaintiff's assertion, the reports are unsigned.
Furthermore, Mr. Sibley testified that they were draft reports. And counsel immediately objected
to their inadvertent disclosure. Against this backdrop, the fact that the documents were not
imbued with the word "draft" does not supply credible indicia that the documents were intended
to be or somehow became a completed report. Consequently, the reports in question fall within
the revised work-product protection afforded by Rule 26(b)(4)(B).
Moreover, the drafts reflect differing approaches to countering the matters brought into
focus by plaintiff's testimony and/or plaintiff's expert report. The changes raise a sound
inference that they were brought about by discussions with counsel. Such "protected work
prepared in anticipation of litigation must be produced only under very limited circumstances."
Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 277 (W.D. Pa. 2014) (Cercone, J.).
An exception to ordinary work product is recognized where the party seeking disclosure can

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demonstrate a substantial need for the material and the inability without undue hardship to obtain
the substantial equivalent of it by other means. Id. (citing Fed. R. Civ. P. 26(b)(3)).
Here, plaintiff has not even attempted to meet the stringent showing needed to compel
material subject to the work-product protection. In addition, disclosure of the differing
approaches would be tantamount to compelling disclosure of counsel's strategies and theories
about the best measures to pursue in defense. Such "opinion work product is 'afforded near
absolute protection from discovery.'" Id. (quoting In re Cendant Corp. Sec. Litig., 343 F.3d 658,
663 (3d Cir. 2003)). There is no basis in the record for disclosure of such information.
In short, the documents in question are draft expert reports entitled to protection under
the work-product privilege. Plaintiff has failed to supply any basis for overcoming that privilege.
Consequently, his motion to compel properly has been denied.

s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:

Paul A. Tershel, Esquire
Jarrod T. Takah, Esquire
Anthony J. Rash, Esquire
Michael J. Sweeney, Esquire
Lisa M. Barnett, Esquire
Joni M. Mangino, Esquire
Matthew G. Breneman, Esquire
Samantha Quinn, Esquire
Terrance R. Henne, Esquire
(Via CM/ECF Electronic Mail)

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