United States District Court, D. Massachusetts
MATTHEW J. SZULIK, et al., Plaintiffs,
STATE STREET BANK AND TRUST COMPANY, Defendant.
MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO COMPEL RAISING CLAIMS OF PRIVILEGE
JUDITH GAIL DEIN, Magistrate Judge.
This matter is before the court on "State Street's Motion to Compel Plaintiffs to Respond to Requests for Production and Interrogatories" ("State Street Motion") (Docket No. 99) and "Plaintiffs' Motion (i) to Compel Answers to Interrogatories and (ii) for a Finding that a State Street Email Chain is Not Privileged" ("Szulik Motion") (Docket No. 104). After consideration of the written and oral arguments of the parties, the court ruled on most of the issues raised in the motions. However, several disputes remained which raised issues of privilege, and they were taken under advisement. Those issues are addressed herein.
Documents Obtained by BDO Consulting
State Street has moved to compel documents obtained by BDO Consulting ("BDO") relating to plaintiffs' TAG-managed investments. (Docket No. 100 at 11). State Street contends that BDO, acting as the plaintiffs' agent, communicated with third parties "to gather facts about the investments central to this case." ( Id. at 13). State Street argues that these non-privileged documents should be produced by the plaintiffs even though they are in BDO's possession, as the plaintiffs are entitled to obtain these documents from BDO. Plaintiffs argue, however, that BDO was hired "as a non-testifying expert witness to provide professional consulting services and assist them in their lawsuit against James Tagliaferri and TAG" and that the information BDO gathered from third persons is "privileged and immune from disclosure." (Docket No. 112 at 11) (quoting Employees Committed for Justice v. Eastman Kodak Co. , 251 F.R.D. 101, 104 (W.D.N.Y. 2008)). This court agrees with the plaintiffs, and the motion to compel the production of documents obtained by BDO is denied. However, nothing herein shall preclude State Street from obtaining the documents from other sources.
Fed. R. Civ. P. 34(a)(1) authorizes a party to request the production of documents within the responding party's "possession, custody, or control." "[D]ocuments are considered to be under a party's control' when that party has the right, authority or ability to obtain those documents upon demand.'" Colon v. Blades , 268 F.R.D. 129, 132 (D.P.R. 2010) (quoting Green v. Fulton , 157 F.R.D. 136, 142 (D. Me. 1994)). In the instant case, State Street contends that the plaintiffs should produce responsive documents obtained from third parties in BDO's files because BDO obtained those documents in its capacity as an agent for the Szuliks, and the Szuliks have the right to obtain these documents from BDO. As an example of the type of documents at issue, State Street cites to an email from BDO to counsel for IEAH "to request various IEAH documents so that BDO could review and assess certain investments made by Mr. Tagliaferri and his companies....'" (Docket No. 100 at 11-12). State Street's argument has some facial appeal, as a party "may not shield relevant information from discovery merely by passing it off to a third party, including a non-testifying expert." In re PolyMedica Corp. Sec. Litig. , 235 F.R.D. 28, 33 (D. Mass. 2006). However, State Street is seeking to obtain the facts gathered by BDO at the time it was acting in its capacity as a non-testifying expert, and not merely as the Szuliks' agent. Moreover, State Street is not seeking information that came from the Szuliks' files that they "passed off" to BDO. Under such circum-stances, this court is constrained to find that State Street is precluded from gathering the information obtained by BDO under the provisions of Fed.R.Civ.P. 26(b)(4)(D).
Fed. R. Civ. P. 26(b)(4)(D) provides as follows:
Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
"The protection afforded non-testifying experts is distinct from the work-product doctrine and the attorney-client privilege." In re PolyMedica Corp. , 235 F.R.D. at 30. The Rule "protects both facts known and opinions held by a non-testifying expert, " but it does not prevent a party from seeking "to obtain the same specific facts from other sources." Id. at 33. Thus, Rule 26(b)(4)(D) "creates a safe harbor whereby facts and opinions of non-testifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances." U.S. Inspection Servs., Inc. v. NL Engineered Solutions, LLC , 268 F.R.D. 614, 617 (N.D. Cal. 2010) (internal punctuation and quotations omitted).
In the instant case, the Szuliks have established that BDO was hired by counsel, Holland & Knight LLP, as a non-testifying expert, and that BDO has never been designated as a testifying witness. (Maroney Decl. (Docket No. 113) at ¶ 9 & Ex. 2). Discovery of the facts known to the non-testifying expert through the production of the documents in BDO's possession would simply be "an end-run around the restrictions on discovery of a party's consulting expert." In re Grassi, M.D., MBD No. 13-91269-PBS, 2013 WL 6623189, at *2 (D. Mass. Dec. 13, 2013). State Street has not put forth any showing of exceptional circumstances that would preclude it from getting the information from other sources. Therefore, State Street's motion to compel the production by the Szuliks of the documents gathered by BDO is denied.
In connection with the litigation the Szuliks brought in New York, Matthew Szulik compiled a chronology to prepare for his deposition. State Street is seeking an order compelling the production of the document, which the Szuliks have refused to produce on the grounds that it is protected by the work product doctrine. This court agrees that the document constitutes work product, and the motion to compel is denied.
The work product doctrine, which was first articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and has been codified in Fed.R.Civ.P. 2(b)(3), "protects against disclosure of materials that a party, her attorney, or her representative prepares in anticipation of litigation[.]" In re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D. Mass. 2004). Thus, the work product doctrine precludes discovery of work that "is reflected... in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways" as long as it was prepared in anticipation of litigation. See Hickman, 329 U.S. at 511, 67 S.Ct. at 393. By extending such protection, the doctrine "preserves a zone of privacy' in which a party, his attorney, and in many cases his non-attorney representative' can prepare for litigation, free from unnecessary intrusion by his adversaries.'" In re Grand ...