BARRY S. SELTZER, Magistrate Judge.
These consolidated actions involve the sale of allegedly defective bulletproof vests. The discovery dispute spans three separate class action complaints. The parties initially took discovery in
After the Court lifted the discovery stay for the California-specific claims in the
Defendant asserts work-product privilege to documents PBE_007643, PBE_007644-645, PBE_007646-647, PBE_007648-650, PBE_007651-653, and PBE_007654-656 (collectively referred to as "Tab A-1 Documents"). These documents are a string of emails dated April 25, 2018, between Defendant's employees that refer to the testing and evaluation of SSBS vests. Defendant asserts that the tests were performed at the direction of litigation counsel in advance of and for the parties' April 30, 2018 mediation in the First Class Action.
Claims of work product protection are governed by Federal Rule of Civil Procedure 26(b)(3), which provides in pertinent part: "Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). The Declaration of Tom Steffen, Defendant's Executive Vice President of Corporate Legal Affairs (DE [101-1]), establishes that the testing and evaluations referred to in the emails were conducted at the request of counsel in anticipation of mediation:
Defendant does not, as argued by Plaintiff, make a conclusory assertion of privilege. Rather, Defendant establishes that the emails in question pertained to preparations directed by Defendant's attorneys for a mediation conference that was to be held several days later. Plaintiff further argues that the work-product privilege does not apply to the Tab A-1 documents because Defendant has not shown that any of the documents were prepared by or submitted to defense counsel. Plaintiff's definition of work product is too narrow. The fact that documents "were not authored or received by an attorney, standing alone, is insufficient to demonstrate that no protection applies to those documents."
Finally, Plaintiff argues that the Tab A-1 Documents cannot be protected by work-product privilege because they do not contain any "core attorney opinions" or "opinion of counsel." Again, Plaintiff defines work product too narrowly. The work-product doctrine protects both opinion work product, such as "core attorney opinions" and the like, as well as "fact work-product," such as the Tab A-1 Documents.
Tab A-2 contains documents labeled PRIVID_00102 to 00109, which consist of email strings from July 14 to 17, 2017 (referred to collectively as the "Tab A-2 Documents"). The Declaration of Tom Steffen (DE [101-1]) explains that these emails were generated in response to outside counsel's requests for information about sales data and contracts in Ohio. According to Steffen, these documents were gathered "so that Point Blank and its Counsel could evaluate the allegations in the Proposed Complaint and to assist in the parties' settlement-related discussions." For the reasons set forth above, the undersigned concludes that the Tab A-2 Documents are protected by the work-product privilege.
Tab A-3 includes documents labeled PRIVID_00067 to PRIVID__00079 (referred to collectively as "Tab A-3 Documents"). According to the Declaration of Tom Steffen (DE [101-1]), "[a]fter receiving the Proposed Complaint, Point Blank and its counsel (Morgan Lewis and Berger Singerman) had numerous conversations regarding defenses to the Proposed Complaint, Plaintiffs' settlement-related demands, and potential resolution of the dispute. Counsel for Point Blank asked me to instruct other Point Blank employees to provide certain information to aid in those discussions and our ongoing analysis of the claims and allegations in the Proposed Complaint." Upon review of the Tab A-3 Documents, the Court finds that the documents directly pertain to strategies for pre-suit settlement, as well as litigation strategy. No outside expert was copied on the email chains, but outside attorneys were either included in or commenced the email chains in question.
Tab A-4 includes documents labeled PRIVID_00047 to PRIVID_00055 and PRIVID_00059 to PRIVID_00064 (referred to collectively as "Tab A-4 Documents"). The Tab A-4 Documents are emails between Defendant's employees and employees of the consulting firm Exponent. The emails were sent between June 14, 2017, and July 6, 2017, and reportedly "reflect communications regarding expert consulting work, including testing, for purposes of the pre-settlement discussions with Plaintiff's counsel and the defense of threatened, anticipated litigation." (DE [101], p. 11].
Defendant argues that the communications reflected in the Tab A-4 Documents are protected by the work-product privilege because Defendant hired Exponent on a consulting basis in anticipation of litigation after Defendant had been provided a copy of the proposed complaint in the First Class Action. Rule 26(b)(4)(B) provides that a litigation consultant is "generally immune from discovery." Fed. R. Civ. P. 26(b)(4)(B). "However, when an expert serves as both a litigation consultant and a testifying witness, an issue arises as to whether the party relinquishes the privilege that would otherwise attach to the litigation consultant's work."
Significantly, in a footnote in its memorandum of law, Defendant acknowledges that nearly one year after retaining Exponent in a consulting capacity, Defendant designated Christian Page from Exponent as a testifying expert (DE [101], n.7). Nevertheless, Defendant argues that all communications with Exponent prior to the filing of the First Class Action were made pursuant to a non-testifying consulting arrangement and, thus, constitute work product. The Court disagrees.
"[T]he facts or data considered by [a testifying expert]" are subject to disclosure. Fed. R. Civ. P. 26(b)(2)(B)(ii);
The Tab A-4 Documents are purely factual and contain no "core opinion work-product" of attorneys. Defendant's testifying expert, Christian Page, is copied in most, if not all, of the emails in the Tab A-4 Documents. (The one email not copied to Christian Page — PRIVID_00054 to PRIVID_00055 — contains an attachment that is identical to an email that was sent to Page). Although several attorneys from Morgan Lewis are copied on some of the emails, none of the emails were written or sent by the attorneys.
Defendant argues that the testing referred to in the Tab A-4 Documents occurred during the consulting stage of Exponent's services and prior to Christian Page's retention as a testifying expert and, thus, the documents are protected by work-product privilege. "However, whether time has passed [between Page's retention as consultant and testifying expert] is not the pertinent inquiry; instead, the question is the extent of the
Defendant bears the burden to demonstrate the applicability of the work-product doctrine.
Finally, Tab B contains a series of emails (PBE_406844) among Defendant's employees that Defendant contends is protected by attorney-client and work-product privilege. It appears that Plaintiff is challenging a three-sentence redaction from an email sent by Tom Steffen to other employees. After reviewing the redacted information, the Court concludes that the redacted portion is subject to the attorney-client privilege.
Based on the foregoing, it is hereby