Murray et al v. Southern Route Maritime SA et al

Filing 70

ORDER granting in part pltf's 53 Motion for Protective Order by Judge Robert S. Lasnik.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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ROGER and ELISE MURRAY,
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Plaintiffs,
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v.
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SOUTHERN ROUTE MARITIME, S.A.,
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et al.,
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Defendants.
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_______________________________________)

No. C12-1854RSL
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER

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This matter comes before the Court on “Plaintiffs’ Motion for Protective Order and

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to Quash Subpoena.” Dkt. # 53. Having reviewed the memoranda, declarations, and exhibits

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submitted by the parties,1 the Court finds as follows:

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A. Applicability of Non-Testifying Expert Privilege
Despite the fact that Ms. Murray hoped that the evaluation performed at the

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Chicago Electrical Trauma Research Institute (“CETRI”) in 2011 would lead to better treatment

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options for her husband, the record shows that the driving force behind the consultation was

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plaintiffs’ counsel’s litigation needs. Counsel identified, contacted, and retained CETRI to

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Contrary to the requirements of LCR 7(g)(1), defendants did not file a notice of intent to file a
sur-reply. Because the Court had already drafted this order when the sur-reply was filed, the evidentiary
objections have not been considered except as discussed below.
ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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review Mr. Murray’s medical records and generate a report regarding diagnosis and causation.

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Only then did Ms. Murray reach out to her husband’s treating physicians in Seattle, apparently in

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the vain hope of obtaining insurance proceeds to help offset the costs of the consultation. It is

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undisputed that CETRI’s report was never used as a treatment plan or shared with plaintiff’s

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treating physicians.

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The Court finds that CETRI was consulted “in anticipation of litigation.” Because

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plaintiffs do not expect CETRI or its employees to be called as witnesses at trial, defendants

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would ordinarily not be entitled to discover facts known or opinions held by the non-testifying

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experts under Fed. R. Civ. P. 26(b)(4)(D). Defendants have not shown that Rule 35 applies or

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“exceptional circumstances under which it is impracticable for the party to obtain facts or

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opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(D)(i) and (ii). Mr.

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Murray’s condition and status during the relevant time frame is recorded in other medical

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records, and defendants could, if they choose, seek a medical evaluation under Fed. R. Civ. P.

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35(a) and/or hire their own consulting expert.

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B. Waiver
The issue, then, is whether plaintiffs waived the non-testifying expert privilege

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when they produced CETRI’s report to Mr. Murray’s employer, Eagle Marine Services, Ltd., in

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March 2012. At the time, Mr. Murray was pursuing a claim for worker’s compensation benefits

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against Eagle Marine Services and disclosed the report in an effort to settle that case. Plaintiffs

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argue that the privilege afforded by Rule 26(b)(4)(D) cannot be waived or that, if waiver does

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apply, it is not supported by the facts in this case.

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While there are a number of cases that question whether the non-testifying expert

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privilege can be waived, very few actually make a finding that waiver is inapplicable. See U.S.

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Inspection Servs. v. NL Engineered Solutions, 268 F.R.D. 614, 624-25 (N.D. Cal. 2010) (“Here,

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the Court need not resolve the question of whether waiver is even possible under Rule

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ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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26(b)(4)(B).”)2 The vast majority of cases find or assume that waiver applies and proceed to

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make the necessary factual determinations based on the record presented. See Appleton Papers,

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Inc. v. Envt’l Prot. Agency, 702 F.3d 1018, 1024-25 (7th Cir. 2012) (noting that “once a party

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relies on the research of a non[-]testifying expert, it falls out of the protection of [Rule

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26(b)(4)(D)] and becomes freely discoverable.”); In re Chevron Corp., 633 F.3d 153, 164 n.17

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(3rd Cir. 2011) (“We agree with the District Court that the non-testifying expert privilege . . . is

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not applicable here because, by providing consulting expert reports to a testifying expert, the

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privilege is lost.”) (internal alterations omitted); Eidos Display, LLC v. Chunghwa Picture

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Tubes, Ltd., 296 F.R.D. 3, 8 (D.D.C. 2013) (“While there is contrary authority that suggests that

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the protections afforded by Rule 26(b)(4)(D) are subject to waiver, the Court finds that these

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cases do not call for waiver in the precise circumstances presented here.”). The Court finds that

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the majority rule is persuasive. The right to keep the opinions of non-testifying experts secret is

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based on the same concerns that motivate the work product doctrine: counsel must have a safe

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space in which to investigate, analyze, and prepare his client’s case without fear that the

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opposing party will be able to exploit his efforts. See U.S. v. Fort, 472 F.3d 1106, 1116 (9th Cir.

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2007); Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir.

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1989). Neither plaintiffs nor the cases on which they rely offer a persuasive reason why the non-

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testifying expert privilege should be maintained despite a knowing and intelligent disclosure

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when virtually every other privilege, including the attorney-client privilege and work product

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protections, are subject to waiver. See Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir.

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2010). The Court finds that if the facts known or opinions held by a non-testifying expert are

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intentionally disclosed or used in a way that is contrary to the purpose of the privilege, waiver

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may apply.

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Former Rule 26(b)(4)(B) was renumbered 26(b)(4)(D) in the 2010 Amendments.

ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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Plaintiffs argue that their disclosure to Eagle Marine Services was not antithetical

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to the purposes of the non-testifying expert privilege because Eagle Marine Services is not

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involved in this litigation and the disclosure occurred in a different case. The work product

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doctrine exists to protect an attorney’s work (including evaluations obtained from non-testifying

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experts) from falling into an adversary’s hands. Not every disclosure works against that

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purpose. If, for example, plaintiffs had given a copy of the CETRI report to one of his treating

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physicians3 or a third-party with whom it shared an interest and had a reasonable expectation that

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the report would be kept confidential, the Court would be hard-pressed to find that they had

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acted adversely to the purposes of the privilege. Such disclosures would not substantially

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increase the opportunities for potential adversaries to obtain the information or suggest a

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conscious disregard of the risk that adversaries would obtain the report. See Appleton Papers,

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702 F.3d at 1025; Westinghouse Elec. Corp. v. Rep. of Philippines, 951 F.2d 1414, 1431 (3rd

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Cir. 1991).
In the circumstances presented here, however, that conclusion is obvious.

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Plaintiffs turned the CETRI report over to their opponent in an on-going worker’s compensation

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case. The record suggests that plaintiffs’ belief that the CETRI report is subject to the non-

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testifying expert privilege is of relatively recent vintage: when they provided it to Eagle Marine

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Services in March 2012, they did not identify CETRI as a litigation consultant, assert the

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privilege, or request confidentiality. The transferring email stated simply “Attached is the

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evaluation of Mr. Murray from Chicago. Please advise regarding the potential for resolving the

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current issues in this case.” Second Decl. of C. Steven Fury (Dkt. # 64), Ex. 19. Both the

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adversarial nature of the relationship between plaintiffs and Eagle Marine Services at the time

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Because this case does not involve a claim that plaintiffs have unfairly used the privilege as a
sword, the Court need not determine whether a disclosure to a treating physician who then uses the
opinions set forth in the CETRI report to guide future treatment options would constitute a waiver.
ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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and the absence of any suggestion of privilege or request for confidentiality are apparent. The

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mere fact that the parties were attempting to settle the litigation did not create a community of

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interests that would impose an obligation of confidentiality on Eagle Marine Services. Where a

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party has chosen to disclose a privileged document to an adversary with no reasonable

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expectation of privacy, the disclosure is antithetical to the reasons for the non-testifying expert

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privilege and constitutes a waiver. In addition, the two cases at issue here are related in such a

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way that plaintiffs should reasonably have expected that Mr. Murray’s employer would share

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information it had regarding plaintiffs’ claim with its parent and sister companies, including the

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operators of the vessel on which he was injured. Plaintiffs’ voluntary disclosure to Eagle Marine

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Services substantially increased the likelihood that opposing parties would gain access to the

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report and suggests conscious disregard of the privileged nature of the document.

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C. Scope of the Waiver
The non-testifying expert privilege protects from disclosure “facts known or

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opinions held” by the expert. Fed. R. Civ. P. 16(b)(4)(D). Although plaintiffs’ disclosure of the

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CETRI report waived the privilege as to that document, they have preserved the confidentiality

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of the underlying examination records and any unreported facts or opinions held by the

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examining experts. Plaintiffs still have an interest in benefitting from some part of their

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litigation preparation, and this interest is at the core of the work product doctrine and the non-

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testifying expert privilege. While a party cannot shield the material which it has already

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disclosed or on which its witnesses rely, where the disclosure is limited, the waiver applies only

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to the matters disclosed or relied upon. The purposes of the privilege are advanced if

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“[u]ndisclosed work product remains protected.” Appleton Papers, 702 F.3d at 1026.

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D. Motion to Strike
The Court has not considered the last two sentences of ¶ 13 or ¶ 15 of the
Declaration of Barbara L. Holland (Dkt. # 59).

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ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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For all of the foregoing reasons, plaintiffs’ motion for a protective order and to

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quash subpoenas is GRANTED in part and DENIED in part. Plaintiffs have waived the non-

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testifying expert privilege as to the CETRI report. Defendants’ March 27, 2014, records

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subpoena and the April 3, 2014, deposition subpoena to CETRI are quashed.

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Dated this 28th day of April, 2014.

A
Robert S. Lasnik

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United States District Judge
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ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

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