Perez v. BAT Masonry Company, Inc. et al

Filing 125

MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on March 31, 2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
EDWARD HUGLER, United States
Secretary of Labor,

)
)
)
Plaintiff,
)
)
v.
)
)
BAT MASONRY COMPANY, INC., et al., )
)
Defendants.
)

Civil Action No. 6:15-cv-28
By: Robert S. Ballou
United States Magistrate Judge

MEMORANDUM OPINION
In this ERISA action, the Department of Labor (“DOL”) seeks to hold defendants liable for
their purported breaches of fiduciary duties under a failed ESOP. Defendants Gregory Booth,
M.H. Masonry, Inc., and Melvin Hinton (“Defendants”) filed a motion to compel the DOL to
produce documents that were withheld from discovery on the basis of privilege. Dkt. No. 117. The
DOL objects on the grounds that the documents sought are protected from disclosure by the
attorney client privilege, the deliberative process privilege, the law enforcement privilege, and the
attorney work product doctrine. Dkt. No. 120. I reviewed the subject documents in camera and
heard oral argument. The motion to compel is GRANTED in part and DENIED in part.
I.
The facts of this matter have been set out in prior court opinions, and I will not recite them
in detail here. The core issue underlying this motion is Defendants’ statute of limitations defense,
claiming that the DOL had actual knowledge of the alleged ERISA violations more than three
years before it filed suit on August 28, 2015.
The applicable limitations period in this action is three years “after the earliest date on
which the plaintiff had actual knowledge of the breach or violation.” 29 U.S.C. § 1113. The Fourth

Circuit has not provided a precise definition of “actual knowledge” in the context of a suit brought
under ERISA. See Browning v. Tiger’s Eye Benefits Consulting, 313 Fed. Appx. 656, 660–61 (4th
Cir. 2009). The Browning court acknowledged that other circuits have come to differing
conclusions regarding what constitutes “actual knowledge,” such as the Third and Fifth Circuits’
requirement of “a showing that plaintiffs actually knew not only of the events that occurred which
constitute the breach or violation but also that those events supported a claim of breach of fiduciary
duty or violation under ERISA.” See Int’l Union v. Murata Erie N. Am., Inc., 980 F.2d 889, 900
(3d Cir. 1992); Maher v. Strachan Shipping Co., 68 F.3d 951, 954 (5th Cir. 1995). Conversely, the
Sixth, Seventh, and Ninth Circuits have determined that actual knowledge occurs when a plaintiff
has knowledge of the facts or transaction that constituted the alleged violation, and “it is not
necessary that the plaintiff also have actual knowledge that the facts establish a cognizable legal
claim under ERISA.” Wright v. Heyne, 349 F.3d 321, 330 (6th Cir. 2003); see also Martin v.
Consultants & Adm’rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992); Meagher v. Int’l Assoc. of
Machinists and Aerospace Workers Pension Plan, 856 F.2d 1418, 1423 (9th Cir. 1988).
Meanwhile, the Second Circuit has held that a plaintiff has actual knowledge “when he has
knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his
or her duty or otherwise violated the Act.” Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001).
In Browning, the Fourth Circuit declined to define the phrase, but did note that actual
knowledge “depends largely on the ‘complexity of the underlying factual transaction, the
complexity of the legal claim[,] and the egregiousness of the alleged violation.’” Browning, 313
Fed. Appx. at 661 (quoting Martin, 966 F.2d at 1086). The Court also found that “there cannot be
actual knowledge of a violation for purposes of the limitation period unless a plaintiff knows the
‘essential facts of the transaction or conduct constituting the violation.’” Id. (quoting Edes v.

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Verizon Commc’ns, Inc., 417 F.3d 133, 142 (1st Cir. 2005)).
Thus, Defendants’ assertion that DOL had actual knowledge of the ERISA violations more
than three years before filing this suit will be a strongly contested, factually-based issue in this
litigation. Defendants argue that documents withheld from production by the DOL on the basis of
privilege are relevant to their statute of limitations defense and do not properly qualify as
privileged, or that any applicable privilege is outweighed by Defendants’ substantial need for the
documents. The DOL asserts that all of the documents sought are properly protected from
disclosure by either the attorney-client privilege, the deliberative process privilege, the law
enforcement privilege, or the work product doctrine. I first discuss the standard for each of the
privileges asserted and then apply those standards to each category of documents.
II.
Attorney-Client Privilege
The attorney-client privilege is the oldest privilege for confidential communications
known to the common law. Upjohn Co. v. United States., 449 U.S. 383, 389 (1981). Where the
attorney-client privilege applies, “it affords confidential communications between lawyer and
client complete protection from disclosure.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.
1998). It applies to individuals and corporations, and to in-house and outside counsel. See Upjohn,
449 U.S. at 394. Because the attorney-client privilege “impedes the full and free discovery of the
truth, it must be narrowly construed and recognized only to the very limited extent that excluding
relevant evidence has a public good transcending the normally predominant principle of utilizing
all rational means for ascertaining truth.” In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir.
2003) (internal quotation marks and citations omitted).
The Fourth Circuit applies the “classic test” of the attorney-client privilege:

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(1) the asserted holder of the privilege is or sought to become a client; (2) the person
to whom the communication was made (a) is a member of a bar or court, or his
subordinate and (b) in connection with this communication is acting in his capacity
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the purposes
of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a
crime or tort; and (4) the privilege has been (a) claimed (b) and not waived by the
client.
Id. at 336. “The burden is on the proponent of the attorney-client privilege to demonstrate its
applicability. The proponent must establish not only that an attorney-client relationship existed,
but also that the particular communications at issue are privileged and that the privilege was not
waived.” Id. (citation omitted). “Any disclosure inconsistent with maintaining the confidential
nature of the attorney-client relationship waives the privilege.” United States v. Jones, 696 F.2d
1069, 1072 (4th Cir. 1982).
Deliberative Process Privilege
The deliberative process privilege protects from disclosure certain documents that contain
“advisory opinions, recommendations and deliberations” on which governmental decisions and
policies are based. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citation omitted); NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (The privilege rests on “the policy of
protecting the ‘decision making processes of government agencies,’ [] and focus[es] on documents
‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.’”)(citations omitted). The purpose of
the privilege is to protect agency deliberations from public scrutiny, encouraging “the policy of
open, frank discussion between subordinate and chief concerning administrative action.” Kaiser
Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 48 (1958); see also Sears, Roebuck &

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Co., 421 U.S. at 151 (“Manifestly, the ultimate purpose of this long-recognized privilege is to
prevent injury to the quality of agency decisions.”).
To invoke the deliberative process privilege, the government must show that the
documents are both (1) predecisional and (2) deliberative. See City of Virginia Beach v. Dep’t of
Commerce, 995 F.2d 1247, 1254 (4th Cir. 1993) (noting that “ultimate questions [are] whether the
materials bear on the formulation or exercise of agency policy-oriented judgment [and] whether
disclosure would tend to diminish candor within an agency”) (citation and internal quotation
marks omitted). Predecisional documents are “prepared in order to assist an agency decision
maker in arriving at his decision.” Id. (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g
Corp., 421 U.S. 168, 184 (1975); see also Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 868 (D.C. Cir. 1980) (noting that “a document from a subordinate to a superior official is
more likely to be predecisional, while a document moving in the opposite direction is more likely
to contain instructions to staff explaining the reasons for a decision already made”). Deliberative
materials are documents that reflect “the give-and-take of the consultative process by revealing the
manner in which the agency evaluates possible alternative policies or outcomes.” Id. (citation
omitted). Thus, the privilege protects “recommendations, draft documents, proposals, suggestions,
and other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Coastal States Gas Corp., 617 F.2d at 866 (“Documents which are protected
by the privilege are those which would inaccurately reflect or prematurely disclose the views of the
agency, suggesting as agency position that which is as yet only a personal position.”). The
privilege does not protect factual or investigative material, except as necessary to avoid indirect
revelation of the decision-making process. Pac. Gas & Elec. Co. v. United States, 70 Fed.Cl. 128,
133–134 (2006), modified on reconsideration, 71 Fed. Cl. 205 (2006) (quoting Scott Paper Co. v.

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United States, 943 F. Supp 489, 496 (E.D. Pa. 1996)). “Thus, factual findings and conclusions, as
opposed to opinions and recommendations are not protected.” Id. (internal quotations omitted).
Finally, the privilege may be overcome if the moving party demonstrates that its
evidentiary need for the documents outweighs the harm that disclosure would cause the
non-moving party. Sikorsky Aircraft Corp. v. United States, 106 Fed. Cl. 571, 577 (2012). To
determine whether the privilege should be overcome, the court may consider five factors:
(i) the relevance of the evidence sought to be protected; (ii) the availability
of other evidence; (iii) the seriousness of the litigation and the issues
involved; (iv) the role of the government in the litigation; and (v) the
possibility of future timidity by government employees who will be forced
to recognize that their secrets are violable.
Dairyland Power Co-op. v. United States, 77 Fed. Cl. 330, 338 (2007) (quoting In re Subpoena
Served Upon Comptroller of Currency, 967 F.2d 630, 634 (D.C. Cir. 1992).
There are three procedural requirements for assertion of the privilege: 1) the agency head
must assert the privilege after personal consideration; 2) the agency head must state with
particularity the information subject to the privilege; and 3) the agency must aver precise and
certain reasons for preserving the confidentiality of the requested documents. Dairyland Power
Co-op., 77 Fed. Cl. at 336–37. Here, the DOL submitted an affidavit from the Deputy Assistant
Secretary for Program Operations, Timothy D. Hauser, stating why the documents at issue are
protected by the deliberative process privilege. Dkt. No. 120-1. See Kaufman v. City of New York,
No. 98 Civ. 2648(MJL)(KNF), 1999 WL 239698, at *3 (S.D.N.Y. Apr. 22, 1999) (“The agency
head or his or her authorized designee must invoke the privilege through an affidavit which states,
inter alia, that he or she has reviewed each of the relevant documents and provides the reason(s)
why preserving confidentiality—rather than the agency’s interest in the particular
action—outweighs the public interest in disclosure.”). Deputy Assistant Secretary Hauser listed

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the documents by Bates number, and affirmed that the documents contain the internal
deliberations of the Employee Benefits Security Administration (“EBSA”) prior to the decision to
commence legal action, including: the pre-decision intra-agency deliberations of EBSA;
recommendations, opinions, and advice on legal or policy matters; and written summaries of
factual evidence that reflect a deliberative process. Dkt. No. 120-1, p. 5. Deputy Assistant
Secretary Hauser, acting under delegated authority, invoked the deliberative process privilege to
“protect and promote candid discussions within the agency.” Id. Thus, I find that the procedural
requirements for asserting the deliberative process privilege are met.
Work Product Doctrine
The work-product doctrine is set forth in Federal Rule of Civil Procedure 26(b)(3)(A),
which states: “Ordinarily, a party may not discover documents . . . that are prepared in anticipation
of litigation or for trial by or for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent).” Thus, there are three threshold
requirements for evidence to be shielded from discovery by the doctrine:
First, the information sought must be otherwise discoverable. Second, it must have
been prepared in anticipation of litigation. Third, the material must have been
prepared by or for a party to the lawsuit or by of for that party’s representative.
Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996). The party opposing discovery bears the
burden of showing that information or material withheld from discovery meets these three criteria
and is thus protected by the work-product doctrine. See Hawkins v. Stables, 148 F.3d 379, 383 (4th
Cir. 1998) (citing Jones, 696 F.2d at 1072); Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D.
252, 254 (W.D. Va. 1999); Collins, 170 F.R.D. at 134. If the information sought meets these three
criteria, it is discoverable only if the requesting party shows that “it has substantial need for the
materials to prepare its case and cannot, without undue hardship, obtain their substantial

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equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii); Adair v. EQT Prod. Co., 294 F.R.D. 1,
3–4 (W.D. Va. 2013). However, even if certain documents are protected by the work product
doctrine, the “facts themselves” are not protected. Connecticut Indem. Co. v. Carrier Haulers, Inc.,
197 F.R.D. 564, 574 (W.D.N.C. 2000) (quoting Ring v. Commercial Union Ins. Co., 159 F.R.D.
653, 659 (M.D.N.C. 1995)).
Law Enforcement Privilege
The law enforcement privilege has not been formally recognized or addressed by the
Fourth Circuit, but other courts have recognized that certain law enforcement techniques may be
subject to a qualified privilege. See United States v. Matish, 193 F. Supp. 3d 585, 600–601 (E.D.
Va. 2016); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984)
(“There surely is such a thing as a qualified common-law privilege within the meaning of Fed. R.
Civ. P. 26(b), for law-enforcement investigatory files.”).
The purpose of this privilege is to prevent disclosure of law enforcement
techniques and procedures, to preserve the confidentiality of sources, to protect
witness and law enforcement personnel, to safeguard the privacy of individuals
involved in an investigation, and otherwise to prevent interference with an
investigation.
In re Dept. of Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988). The party
asserting the privilege bears the burden of showing that the privilege applies to the documents in
question. In re The City of New York, 607 F.3d 923, 944 (2010) (citing In re Sealed Case, 856 F.2d
268, 271–72 (D.C. Cir. 1988)). “An investigation, however, need not be ongoing for the law
enforcement privilege to apply as the ability of a law enforcement agency to conduct future
investigations may be seriously impaired if certain information is revealed to the public.” Id.
(internal quotations omitted).
The law enforcement privilege is qualified and the court must balance “[t]he public interest

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in nondisclosure . . . against the need of a particular litigant for access to the privileged
information.” Id. (quoting In re Sealed Case, 856 F.2d at 272). There is a strong presumption
against lifting the privilege, and to rebut the presumption, the party seeking disclosure must show
(1) that its suit is non-frivolous and brought in good faith, (2) that the information sought is not
available through other discovery or from other sources, and (3) a compelling need for the
information. In re The City of New York, 607 F.3d at 945.
III.
1. Case Opening and Conversion Memo and Supporting Documents (Bates Nos.
1334–1338, 1345, 1377–1380, 1467–1494)
The DOL asserts that these documents are entitled to protection under the deliberative
process privilege and work product doctrine. I conclude that the majority of these documents are
properly withheld on the basis of deliberative process privilege and work product doctrine because
they contain the subjective advice, conclusions, opinions and recommendations of the DOL
investigators. However, I find that the DOL must disclose the case opening document dated
January 15, 2013 (Bates Nos. 1334 & 1335), and the conversion memorandum (Bates Nos. 1337 &
1338) with certain redactions.1 To the extent that these documents recite factual findings and
investigative material, they are not covered by the deliberative process privilege and work product
privilege. See Pac. Gas & Elec. Co., 70 Fed. Cl. at 133–134. With regard to any opinions,
recommendations, and deliberations contained in the non-redacted portions of these documents, I
find that the deliberative process privilege and work product protection is outweighed by
Defendants’ substantial need to access facts regarding the DOL’s knowledge of the subject ERISA
violations. Factual information relating to the timing and extent of the DOL’s knowledge of the

1

I will notify the DOL of the specific redactions I find necessary and warranted in a separate, ex parte
communication, so that it can make the redactions prior to producing the documents.

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ERISA violations is highly relevant to the statute of limitations in this case, and the Defendants
cannot obtain this information by other means. Each party should have the ability to make
arguments and build the record as necessary to support or defend its position; thus, production of
these limited materials is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1).
2. Statute of Limitations Analysis (Bates Nos. 1496–1497)
The DOL properly asserted the attorney-client and work product privilege over this
document because it is a communication from regional counsel to the regional solicitor analyzing
legal issues and providing legal advice. There is no assertion that the attorney-client privilege
attaching to this document has been waived; thus, these documents are properly withheld.
3. Major Case Milestones (Bates No. 1509)
The DOL properly asserted the deliberative process privilege and work product doctrine
over this document, as it reflects the internal agency consultative and deliberative process with
regard to the investigation and pursuance of agency cases. I find no information within this
document for which Defendants have a compelling need to obtain related to the statute of
limitations defense.
4. Investigative Plan (Bates Nos. 1498–1501)
The DOL properly asserted the deliberative process privilege and work product doctrine
over this document, as it contains internal agency deliberations and recommendations and was
prepared in anticipation of litigation. Furthermore, Defendants do not have a compelling need for
this document, which is dated October 22, 2014, more than two years after all parties agree the
statute of limitations had begun to run in this case.
5. Investigator Generated ESOP Transaction Chart (Bates No. 1831)
The ESOP Transaction Chart generated by DOL investigator Colleen McKee is not

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protected by either the deliberative process privilege or work product doctrine, as claimed by the
DOL. This chart is merely a visual representation, using directional arrows, of factual material
regarding the ESOP transaction at issue, and factual material is not protected under either doctrine.
Thus, I find that the DOL must produce this document.
6. Investigator Generated Timeline of ESOP Transaction Events (Bates No. 1832)
Similarly, I find that the Timeline of Events generated by DOL investigator McKee is not
protected by either the deliberative process privilege or work product doctrine, as claimed by the
DOL. The timeline contains only factual information consisting of a timeline of dates and actions
related to underlying ESOP transaction, which are not protected under either doctrine. Thus, I find
that the DOL must produce this document.
7. Investigator Generated Chart of Persons Involved with Transaction (Bates No.
1253)
The DOL properly asserted the deliberative process privilege and work product protection
over the Chart of Persons, as it reflects internal agency investigation and deliberations with respect
to the subject ESOP transaction and the overall pursuance of agency cases. Unlike the Timeline of
Events and ESOP Transaction Chart, the Chart of Persons reflects internal thought processes,
analyses and conclusions of the DOL. Further, I find no information within this document that
Defendants have a compelling need to obtain related to their statute of limitations defense.

8. Communication Log (Bates No. 2006–2008)
The DOL properly asserted the deliberative process privilege and work product protection
over the Communication Log, as it reflects the internal agency investigative and deliberative
process with regard to the investigation and pursuance of agency cases. I find no information
within this document that Defendants have a compelling need to obtain related to their statute of

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limitations defense.

9. Investigator Emails: Regarding Case Strategy and Case Status (Bates No. 5177,
5366, 5378, 5379, 5430, 5936, 5937, 6137, 6138, 6310, 6312, 6313)
The DOL asserts that these e-mails are entitled to protection under the attorney-client
privilege, the deliberative process privilege and the work product doctrine. I find that the DOL
must produce certain e-mails dated July 9 and 16, 2012 (Bates Nos. 5177, 5366, and 5378), with
redactions.2 With regard to any opinions, recommendations, and deliberations contained in these
e-mails, the deliberative process privilege and work product doctrine are outweighed by
Defendants’ substantial need for facts regarding the timing of the DOL’s knowledge of the subject
ERISA violations. The dates of these emails make them relevant to the extent and timing of the
DOL’s knowledge of the ERISA violation, information Defendants need to craft and support
arguments regarding the statute of limitations. Thus, production of these limited materials is
proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Further, I find that the
attorney-client privilege does not apply to these e-mails, as the DOL has not shown that the e-mails
were confidential communications with an attorney for the purposes of securing legal advice or
services.
The remainder of the emails are properly withheld on the basis of the deliberative process
privilege and the work product doctrine, and are not outweighed by a compelling need. These
e-mails are properly withheld, as they relate to the day-to-day investigation of the case, including
ministerial issues such as travel arrangements and scheduling interviews, and investigative
techniques.

2

I will notify the DOL of the specific redactions I find necessary and warranted in a separate, ex parte
communication, so that it can make the redactions prior to producing the documents.

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10. ESOP Power Point Presentation (Bates Nos. 973–994)
The DOL asserts that the ESOP power point presentation is a draft report created by a
testifying expert witness, and therefore, is protected by the work product doctrine. See Fed. R. Civ.
P. 26(b)(4). Federal Rule of Civil Procedure 26(a)(2)(B)(ii) mandates the disclosure of all facts or
data considered by an expert witness who is retained or employed to provide expert testimony,
when the facts or data were considered by the expert in forming opinions the witness will express.
In 2010, Rule 26 was amended to “address concerns about expert discovery,” which included
adding Rule 26(b)(4)(B) protecting drafts of export reports required under Rule 26(a)(2),
regardless of the form in which the draft is recorded. See Fed. R. Civ. P. Rule 26 Advisory
Committee Notes, Subdivision (b)(4) (2010).3 The 2010 Advisory Committee notes state:
Rule 26(b)(4)(C) is added to provide work-product protection for attorney-expert
communications regardless of the form of the communications, whether oral,
written, electronic, or otherwise. The addition of Rule 26(b)(4)(C) 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.
Fed. R. Civ. P. Rule 26 Advisory Committee Notes, Subdivision (b)(4) (2010).
I agree that the ESOP power point presentation is a draft export report and is protected
from disclosure under Rule 26(b)(4)(B). There is no dispute that the power point presentation was
created by a testifying expert in this matter. The report is labeled on each page as “DRAFT: FOR
DISCUSSION PURPOSES ONLY.” Defendants argue that though this document may be a draft
communication between a testifying expert and the DOL, it is not a draft of the expert’s final report
which would fall within the protection of Rule 26(b)(4)(B). Defendants also assert that to the
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The Rules also included Rule 26(b)(4)(C), which “protect[s] communications between the party’s attorney
and any [expert] witness required to provide a report under Rule 26(a)(2)(B),” with three exceptions into which
discovery is permitted: “communications [that] (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.”

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extent the report contains any facts regarding the DOL’s knowledge of the ERISA violations prior
to filing suit, it should be produced. Having reviewed the power point presentation, I find that it is
the type of draft report protected by Rule 26(b)(4)(B).
In United States v. Veolia Environnement North American Operations, Inc., No. CV
13-MC-03-LPS, 2014 WL 5511398, at *3 (D. Del. Oct. 31, 2014), the court held that draft
valuation letters and draft valuation presentations from a testifying expert qualify as draft “reports”
within the meaning of Rule 26(b)(4). The court noted that such draft reports, “demonstrating
counsel’s collaborative interactions with expert consultants” are protected “notwithstanding the
form these documents take.” Id. at *5. Likewise, in Davita Healthcare Partners, Inc. v. United
States, 128 Fed.Cl. 584, 591 (2016), the court stated that “[d]ocuments reflecting [an expert
witness’s] preliminary analysis are work product whether viewed as a ‘preliminary expert opinion’
or as a communication from expert to counsel reflecting their joint effort to develop strategy.”
Here, the power point presentation includes spreadsheets, graphs, and analyses in a presentation to
counsel that reflects the expert and counsel’s collaborative efforts to analyze data and is properly
protected as a draft report under Rule 26(b)(4)(C). I further find no facts or information within the
power point presentation that create a compelling need by the Defendants to override the work
product protection over this document.
11. Other Expert Witness Discovery
Defendants also seek additional information from the DOL’s testifying expert witness,
Dana Messina. During the hearing, the parties noted that the majority of the documents sought had
been or will be produced by the DOL. The remaining documents still at issue involve information
provided to Mr. Messina by the DOL for his evaluation of the case. The documents were in .pdf
format and were uploaded by the DOL to a “portal” which could be accessed by Mr. Messina. The

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DOL agreed to provide a screen shot of the .pdf files with file names describing each of the
documents provided to Mr. Messina. The DOL also agreed to determine from its IT personnel the
date on which the “portal” was made available to Mr. Messina. If these issues cannot be resolved
by the parties, they may reassert them with the court.
IV.
For the foregoing reasons, Defendants’ motion to compel production of non-privileged
documents is GRANTED in part and DENIED in part, as follows:
The DOL shall produce:
1. The case opening document dated January 15, 2013 (Bates Nos. 1334 and 1335) and
the conversion memorandum (Bates Nos. 1337 and 1338), with certain redactions.
2. E-mails dated July 9 and 16, 2012 (Bates Nos. 5177, 5366, and 5378), with certain
redactions.
3. Investigator Generated ESOP Transaction Chart (Bates No. 1831) and Investigator
Generated Timeline of ESOP Transaction Events (Bates No. 1832).
However, I find that the remainder of the documents sought are protected by either the
deliberative process privilege, attorney work product doctrine, law enforcement privilege, or
attorney-client privilege, as explained in this opinion.
Entered: March 31, 2017

Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge

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