In the United States Court of Federal Claims
No. 11-297C
(Filed: September 29, 2016)1
**************************
*
DAVITA HEALTHCARE PARTNERS, *
INC. (f/k/a/ DAVITA INC., f/k/a TOTAL * Motion to Compel; Work-Product
RENAL CARE HOLDINGS, INC., f/k/a * Protection; RCFC 26(b)(3);
MEDICAL AMBULATORY CARE * Testifying Experts; Draft Expert
DELAWARE, INC.), and PHYSICIANS * Reports; RCFC 26(b)(4)(B);
DIALYSIS, INC., and PHYSICIANS * Communications with Counsel;
DIALYSIS VENTURES, INC., and 175 * RCFC 26(b)(4)(C); Expert
DIALYSIS CENTER OWNERS (d/b/a *
Compensation; 2010 Amendments
1,462 DIALYSIS CENTERS), *
* to Fed. R. Civ. P. 26.
Plaintiffs, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
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Bobby R. Burchfield and Matthew M. Leland, King & Spalding LLP, 1700 Pennsylvania
Avenue, NW, Suite 200, Washington, D.C. 20006, and Paul M. Thompson, McDermott Will &
Emery LLP, 500 North Capitol Street, NW, Washington, D.C. 20001, for Plaintiffs DaVita
HealthCare Partners Inc. and 1,236 Dialysis Center Owners (Wholly Owned Entities).
Jason A. Levine and Thomas W. Bohnett, Vinson & Elkins LLP, 2200 Pennsylvania
Avenue, NW, Suite 500 West, Washington, D.C. 20037, for Plaintiffs 175 Dialysis Centers
(Joint Venture and Managed Entities).
Benjamin C. Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr., and John S. Groat,
United States Department of Justice, Civil Division, Commercial Litigation Branch, PO Box
480, Ben Franklin Station, Washington, D.C. 20044, for Defendant. Jason Fragoso and Frank V.
DiNicola, Department of Veterans Affairs, Office of General Counsel, of Counsel.
1
The Court issued this order under seal on September 16, 2016, and directed the parties to
file proposed redactions by September 23, 2016. The Court publishes this order indicating
redactions by asterisks “[***],” and correcting errata.
_________________________________________________________
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO COMPEL
_________________________________________________________
WILLIAMS, Judge.
This matter comes before the Court on Defendant’s motion to compel production of 86
documents withheld as attorney work product. The documents were prepared by, or relate to,
Plaintiffs’ testifying expert witness on damages, Ms. Laureen Ryan. Defendant further requested
that Plaintiffs provide a revised privilege list clarifying what facts or data provided by Plaintiffs’
counsel the expert used in creating her report. The Court held oral argument on August 10,
2016, and granted Defendant’s request for a more detailed privilege log. Plaintiffs submitted
their revised privilege log on August 11, 2016, and Defendant renewed its motion to compel on
August 16, 2016.2
In its renewed motion, Defendant narrowed its request to 58 documents - - document
numbers 1-6, 8-13, 16-32, 44-48, and 53-86 on Ms. Ryan’s revised privilege log. The
documents fall into the following two categories:
1) All work papers, including scripts, spreadsheets, graphs, and presentations that Ms.
Ryan made to counsel containing claims data analyses;
2) Work papers relating to Ms. Ryan’s compensation.
For the reasons stated below, the Court denies Defendant’s sixth motion to compel.
Discussion
The Work-Product Doctrine: Legal Standards
Under the work-product doctrine, “attorney work-product protection attaches to
documents prepared in anticipation of litigation or for trial by a party or his representative.”
Blue Lake Forest Prods., Inc. v. United States, Nos. 01-570C, 01-627C, 04-501C, 2007 WL
5161595, at *1 (Fed. Cl. Mar. 29, 2007) (internal citation omitted). The core intent behind the
work-product doctrine is to shelter “the mental processes of the attorney, providing a privileged
area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422
U.S. 225, 238 (1975). “Essentially, the work-product doctrine encourages attorneys to write
down their thoughts and opinions with the knowledge that their opponents will not rob them of
2
On September 12, 2016, Defendant filed a Reply in support of this renewed motion to
compel further requesting that Plaintiffs produce documents listed on a different privilege log - -
Ms. Ryan’s August 18, 2016 privilege log. Def.’s Second Reply App. 2-17. By order dated
September 15, 2016, Defendant’s Reply was stricken from the record as procedurally deficient.
In the event that Defendant seeks to compel production of documents on the August 18, 2016
privilege log that are described differently than documents covered by this Order, Defendant
shall file a separate motion and identify which documents it seeks to compel. As such, this
Order only covers documents on Ms. Ryan’s August 11, 2016 privilege log.
2
the fruits of their labor.” In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301 (Fed. Cir. 2006)
(citing Hickman v. Taylor, 329 U.S. 495, 511 (1947)).
The work-product doctrine is codified in Rule 26(b)(3) of the Rules of the Court of
Federal Claims (“RCFC”), which provides in pertinent part:
(A) Documents and Tangible Things. Ordinarily, a party may not discover
documents and tangible things 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). But subject
to RCFC 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under RCFC 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those
materials, it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.
RCFC 26(b)(3)(A)-(B). In other words, the party asserting work-product protection carries the
burden to show that the material in question is a document or tangible thing, prepared in
anticipation of litigation by or for a party or its representative. RCFC 26(b)(3)(A); RCFC
26(b)(5); see also Hickman, 329 U.S. at 511-12. Rule 26(b)(3)(a) provides that a party’s
“representative” may include “the other party’s attorney, consultant, surety, indemnitor, insurer,
or agent” - - but does not include an expert. RCFC 26(b)(3)(a); see Republic of Equador v.
Hinchee, 741 F.3d 1185, 1190 (11th Cir. 2013).
The work-product doctrine is not an absolute bar to discovery. EchoStar, 448 F.3d at
1301. Under Rule 26(b)(3)(A), a party may discover documents otherwise protected under the
work-product doctrine upon a showing of “substantial need of the materials in the preparation of
the party’s case” and inability to obtain the substantial equivalent by other means without undue
hardship. Id. at 1302 (citation omitted). This “substantial need” exception, however, applies
only to the underlying facts in a work-product protected document. Id. As such, the Court is
still required to protect “the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative.” Id.
Testifying experts’ documents and tangible things prepared and provided to counsel in
anticipation of litigation are not protected under the general work-product doctrine embodied in
Rule 26(b)(3)(A), but rather are protected under a more specific provision, Rule 26(b)(4)(C),
addressing communications between counsel and testifying experts. In addition, “drafts of any
3
report or disclosure” are protected under Rule 26(b)(4)(B). See Republic of Ecuador v. Mackay,
742 F.3d 860, 865-66, 871 (9th Cir. 2014); Hinchee, 741 F.3d at 1190-91.3
Rule 26(b)(4)(C), “Trial-Preparation Protection for Communications Between a Party’s
Attorney and Expert Witness,” provides:
RCFC 26(b)(3)(A) and (B) protect communications between the party’s attorney
and any witness required to provide a report under RCFC 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 the forming of the opinions to be expressed.
RCFC 26(b)(4)(C).
Prior to the 2010 amendments to the Federal Rules of Civil Procedure and the
corresponding 2011 amendments to the Rules of the Court of Federal Claims, courts generally
applied a “bright-line rule mandating disclosure of all documents, including attorney opinion
work product, given to testifying experts.” Mackay, 742 F.3d at 869 (quoting Reg’l Airport
Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 717 (6th Cir. 2006)). This bright-line rule had
“undesirable effects” such as impeding the efficient interaction and communication between
counsel and experts that led to experts adopting strategies that shielded their communications
from discovery but interfered with their work and increased litigation costs. Mackay, 742 F.3d at
869 (quoting Fed. R. Civ. P. 26 Advisory Committee Notes (2010 amendments)). These
“undesirable effects” led to the 2010 change in the Federal Rules that created an express but
limited work-product protection for collaborative interactions between counsel and testifying
experts. Id.; see e.g., Damon W.D. Wright, Expert Discovery Returns to the Past, 58 Fed. Law.
32, 33 (Jan. 2011) (“The goal” behind the 2010 amendments “is to make working with expert
witnesses easier, expert-intensive litigation less expensive, and expert discovery more focused on
the actual opinions themselves”).
The 2010 Advisory Committee notes clarify how the work-product doctrine applies to
testifying experts:
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
3
Identical versions of the 2010 amended Federal Rules of Civil Procedure 26(b)(4)(B) and
(C) were added to the Rules of the Court of Federal Claims in 2011, as RCFC 26(b)(4)(B) and
(C).
4
experts without fear of exposing those communications to searching discovery.
The protection is limited to communications between an expert witness required
to provide a report under Rule 26(a)(2)(B) and the attorney for the party on whose
behalf the witness will be testifying, including any “preliminary” expert opinions.
Fed. R. Civ. P. Rule 26 Advisory Committee Notes, Subdivision (b)(4) (2010).
The Rules and Advisory Committee Notes also confirm that work-product protection
extends to drafts of expert reports or disclosures. Rule 26(b)(4)(B), “Trial-Preparation Protection
for Draft Reports or Disclosures,” provides:
RCFC 26(b)(3)(A) and (B) protect drafts of any report or disclosure required
under RCFC 26(a)(2) [including disclosure of the testifying expert providing a
report], regardless of the form in which the draft is recorded.
RCFC 26(b)(4)(B). The Notes to this Rule explain:
Rule 26(b)(4)(B) is added to provide work-product protection under Rule
26(b)(3)(A) and (B) for drafts of expert reports or disclosures. This protection
applies to all witnesses identified under Rule 26(a)(2)(A), whether they are
required to provide reports under Rule 26(a)(2)(B) or are the subject of disclosure
under Rule 26(a)(2)(C). It applies regardless of the form in which the draft is
recorded, whether written, electronic, or otherwise. It also applies to drafts of any
supplementation under Rule 26(e).
Fed. R. Civ. P. Rule 26 Advisory Committee Notes, Subdivision (b)(4) (2010).
Ms. Ryan’s Expert Reports
On July 29, 2016, Plaintiffs filed Ms. Ryan’s April 15, 2016 Expert Report and June 15,
2016 Expert Rebuttal Report.4 Ms. Ryan’s April 15, 2016 report states that “Plaintiffs produced
non-contract claims (also referred to as fee-based claims) data for services rendered to the VA
during the Damage[s] Period [2005-2011].” Ryan Report 23. This report contains a section
titled “Key Data Sources & Summary Statistics,” which states that Plaintiffs’ damages analysis
“is based on the claims data that Plaintiffs produced electronically in this matter.” Id. Ms. Ryan
continues for six pages to discuss each source of data related to her damages calculations,
including the data produced by the VA. Id. at 23-29. Ms. Ryan’s report also includes a 12-page
“List of Information Considered,” identifying all court filings, declarations, depositions and
exhibits, and data produced by Plaintiffs and Defendant, as well as all Government files,
correspondence, miscellaneous documents and files, websites, and other publicly available
information that Ms. Ryan considered in forming her expert report. Ryan Report Ex. B, at 1-12.
Both Plaintiffs’ and the Government’s data sets providing the factual bases for Ms. Ryan’s
opinions are listed in her report. Id. at 5-7.
4
On July 28, 2016, the Court ordered the parties to file Ms. Ryan’s report to facilitate
resolution of the instant motion.
5
Ms. Ryan also appended the following six exhibits to her report detailing the “Key
Sources and Summary Statistics” on which she relied: 1) Plaintiffs’ Claim-Level and Charge-
Level Data Summary, 2) Plaintiffs’ Payment Data Summary, 3) Charge-Level Data Summary of
the VA Dataset, 4) VA Fee Schedule Production Summary Statistics, 5) Charge-Level Data
Summary, and 6) HCPCS/CPT [Healthcare Common Procedure Coding System] Codes and
Modifiers in the Plaintiffs’ Claim Data. Ryan Report Exs. C.1-C.6. These six exhibits
summarized the factual basis from which Ms. Ryan derived her damages calculations. Instead of
listing each of the 71,697 claims separately, the report summarized that these claims were tied to
4,680 patients, with a total amount billed of [***]. As the Report notes, the data underlying
these claims have already been produced to Defendant. Ryan Report 23; see DaVita HealthCare
Partners v. United States, 125 Fed. Cl. 394, 397-98 (2016) (noting that DaVita finished its
production of “the remaining relevant claim data in rolling productions on November 18, 2014,
December 19, 2014, January 16, 2015, and January 28, 2015,” which contain “millions of lines
of charge- and claim-level data regarding non-contractual claims by Plaintiffs”).
Ms. Ryan’s Expert Work Papers, Scripts, Spreadsheets, Graphs, and Presentations
Provided to Counsel
Defendant seeks all 86 of Ms. Ryan’s “work papers” listed on Plaintiffs’ privilege log, or
“at a minimum” 26 of the 86 documents listed on Plaintiffs’ privilege log described as
“spreadsheets with claims data analysis for presentation to counsel,” “graphs with claims data
analysis for presentation to counsel,” and a “presentation to counsel providing analysis of claim
related documents and data,” dated from February 13, 2015 through March 10, 2016. Def.’s
Mot. 4, 6, App., at A14-15 (document numbers 8, 11-13, 16-31, 41, 44-45, 47-48). Defendant
added another 10 documents to this list in its renewed motion to compel. Def.’s Renewed Mot. 2
(adding document numbers 1-6, 9, 10, and 46). Defendant argues that the general attorney work-
product doctrine provides no basis to withhold expert work papers from disclosure and that
Plaintiffs were required to disclose all the facts or data considered by Ms. Ryan in forming her
opinions under Rule 26(a)(2)(B)(ii) - - governing the disclosures in a testifying expert’s report.
Id. at 5-6. Defendant contends that Plaintiffs are withholding communications that identify facts
or data that Plaintiffs’ attorney provided and that Ms. Ryan considered in forming her opinions.
Plaintiffs counter that the spreadsheets, scripts, analyses, and presentations, are privileged
work product containing attorney communications with the testifying expert that are protected
under Rule 26(b)(4)(C), or draft documents that are attorney work product under Rule
26(b)(4)(B).
Spreadsheets, Scripts, Analyses, and Presentations
Defendant argues that “the attorney work-product doctrine does not extend to testifying
experts.” Def.’s Mot. 4. However, in 2010, the current version of Rule 26(b)(4)(C) was added
to the Rules,5 which provides that the attorney work-product doctrine does in fact apply to
counsel’s communications with testifying expert witnesses unless these communications fall
within three enumerated exceptions - - documents relating to compensation, documents the
5
The 2009 versions of Rules 26(b)(4)(B) and (C) were renumbered in 2010 as Rules
26(b)(4)(D) and (E), respectively.
6
party’s attorney provided the expert, and assumptions the expert relied on in making her report.
RCFC 26(b)(4)(B)-(C); Hinchee, 741 F.3d at 1190-91; Mackay, 742 F.3d at 865-66. As such,
while testifying expert materials are not broadly entitled to “presumptive” work-product
protection, it is well settled that the 2010 amended Rule 26(b)(4)(C) affords limited work-
product protection to testifying experts’ communications with counsel. See Mackay, 742 F.3d at
865-66, 871.
Plaintiffs assert that Ms. Ryan’s spreadsheets, scripts, analyses, and presentations are
protected “communications from Plaintiffs’ testifying expert, Ms. Ryan, to Plaintiffs’ counsel
about Ms. Ryan’s preliminary claims data analyses and report strategies” protected under Rule
26(b)(4)(C). Pls.’ Resp. 5. Ms. Ryan’s privilege log supports Plaintiffs’ argument. Each entry
in Ms. Ryan’s privilege log describes her analyses communicated to counsel, in the form of
scripts, presentations, outlines, and spreadsheets, prepared for the instant litigation. Pls.’ Resp.
Appx-026-27. While Defendant asserts that the work-product protection does not cover a
testifying expert’s work papers reflecting that expert’s preliminary analysis, the 2010 Advisory
Committee Notes on Rule 26(b)(4)(C) directly refute that argument. These Notes state:
The [Rule 26(b)(4)(C)] protection is limited to communications between an expert
witness required to provide a report under Rule 26(a)(2)(B) and the attorney for
the party on whose behalf the witness will be testifying, including any
“preliminary” expert opinions.
Fed. R. Civ. P. Rule 26 Advisory Committee Notes, Subdivision (b)(4) (2010) (emphasis added).
Documents reflecting Ms. Ryan’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. E.g., Ryan Revised Privilege Log No. 1 (Aug. 11, 2016) (“Ryan Rev.
P. L.”).
Defendant mistakenly equates the expert’s spreadsheets, graphs, and analyses in her
presentations to counsel with “facts and data.” These formulations, however, are interpretations
of data that reflect counsel’s mental impressions and result from the expert’s and counsel’s
collaborative efforts to organize, marshal, and present data. This selective presentation of data is
separate and distinct from the underlying facts and data themselves. See United States v. Veolia
Env’t N. Am. Operations, Inc., No. 13-mc-03, 2014 WL 5511398, at *5 (D. Del. Oct. 31, 2014)
(finding emails between a testifying expert and counsel collaborating on the creation of a
valuation report to be protected under Rule 26(b)(4)(C)). Indeed, because Ms. Ryan included an
extensive list of facts and data she considered in formulating her report in her description of
“Key Data Sources,” Defendant has obtained a full factual predicate for this expert’s opinions
and has what it needs to probe and test those opinions. See Ryan Report 23-29.
Plaintiffs further argue that document numbers 15, 33-34, 36-38, 40, 42-43, 46, and 49-
52 listed on Ms. Ryan’s privilege log are protected as “drafts” under rule 26(b)(4)(B) as they
were created for and included in Ms. Ryan’s draft report. As Rule 26(b)(4)(B) explicitly states,
an expert’s draft report is protected under the attorney work-product privilege “regardless of the
form in which the draft is recorded.” RCFC 26(b)(4)(B). Spreadsheets, graphs, presentations,
and charts are protected under Rule 26(b)(4)(B), so long as the documents were prepared by the
testifying expert to be included in draft expert reports. See, e.g., Deangelis v. Corzine, No. 11-
7
cv-07866, 2016 WL 93862, at *4 (S.D.N.Y. Jan 7, 2016) (recognizing that an expert’s prepared
chart used in a draft expert report was properly protected under the attorney work-product
privilege); Veolia, 2014 WL 5511398, at *5 (finding draft presentations that contain “summaries
and conclusions” that reflect “counsel’s collaborative interactions with expert consultants” to be
protected as privileged); see also In re Application of Republic of Ecuador, 280 F.R.D. 506, 512-
13 (N.D. Cal. 2012), aff’d, sub nom, Mackay, 742 F.3d 860 (9th Cir. 2014) (acknowledging that
draft worksheets created by a testifying expert for use in his expert report would be protected
under Rule 26(b)(4)(B), but the Rule “does not extend to the expert’s own development of the
opinions to be presented outside of draft reports”).
In sum, Plaintiffs have met their burden to show that documents numbered 1-52 on Ms.
Ryan’s privilege log are properly protected under the work-product doctrine applied to testifying
experts, and that documents numbered 15, 33-34, 36-38, 40, 42-43, 46, and 49-52, are protected
as drafts for Ms. Ryan’s “draft expert report” prepared for counsel in anticipation of the instant
litigation. Ryan Rev. P. L. Nos. 1-52.
Work Papers Containing Facts or Data Used in Forming Expert Opinions
Second, citing Rule 26(a)(2)(B)(ii), Defendant seeks to compel production of the same 86
documents under a different Rule, claiming that they contain facts or data considered by Ms.
Ryan in forming her opinions and that these facts and data are discoverable because they were
provided by Plaintiffs’ counsel to Ms. Ryan. Invoking a different rule does not alter the
character of the documents. As found above, these documents do not contain a mere recitation
of facts and data provided by counsel for the expert to review. Moreover, the Rule Defendant
invokes, Rule 26(a)(2)(B), applies to the expert’s report, not expert-counsel communications.
Rule 26(a)(2)(B)(ii) provides:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by a
written report – prepared and signed by the witness – if the witness is one retained
or specially employed to provide expert testimony in the case or one whose duties
as the party’s employee regularly involve giving expert testimony. The report
must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them . . . .
RCFC 26(a)(2)(B) (emphasis added).
Rule 26(a)(2)(B) thus mandates that an expert must include in her report the facts and
data considered by the expert in forming her opinion. Such a disclosure - - on the face of the
report - - enables the opposing party to test the accuracy and applicability of the facts that the
expert relied upon in forming her opinion.
8
The facts and data which Ms. Ryan considered in forming her opinions have already been
produced to Defendant. Pls.’ Resp. 6. As discussed above, Ms. Ryan’s report details every
document and data set she considered in forming her analyses. Defendant does not argue that
Ms. Ryan’s report or her disclosures are somehow insufficient or incomplete, but instead seeks
documents containing Ms. Ryan’s preliminary analyses of claims data and various damages
scenarios, reflecting Plaintiffs’ counsel’s mental processes in developing litigation strategy, or
the iterations of the expert’s preliminary analyses communicated to counsel. Pls.’ Resp. Appx-
0026. These preliminary analyses are not discoverable. RCFC 26(b)(4)(C); see also Nobles, 422
U.S. at 238 (“At its core, the work-product doctrine shelters the mental processes of the attorney
. . . .”).
The 2010 Advisory Committee notes clarify that a party seeking discovery of “facts or
data” provided by counsel or an expert is limited to facts and data - - not any further analyses of
those facts and data:
[U]nder Rule 26(b)(4)(C)(ii) discovery is permitted to identify facts or data the
party’s attorney provided to the expert and that the expert considered in forming
the opinions to be expressed. The exception applies only to communications
“identifying” the facts or data provided by counsel; further communications about
the potential relevance of the facts or data are protected.
Fed. R. Civ. P. 2010 Advisory Committee Notes Subsection 26(b)(4) (emphasis added).
Work Papers Related to Compensation
Defendant requests all of Ms. Ryan’s “invoice[s] for services” numbered 53-86 on
Plaintiffs’ privilege log. However, all invoices reflecting Ms. Ryan’s compensation were
provided to Defendant. See Ryan Rev. P. L. Nos. 53-86 (Aug. 11, 2016) (describing the
withheld documents as “detailed work descriptions, including descriptions of protected attorney-
expert communications and work product . . . .”). Plaintiffs posit that Defendant is actually
seeking “a line-by-line detail of the work performed, including descriptions of preliminary work,
discussions with Plaintiffs’ counsel, and work on drafts of the report,” that were redacted from
the invoices. Pls.’ Resp. 8, Appx-010. Defendant does not dispute Plaintiffs’ characterization of
the redacted material but instead makes a strange argument that because the withheld “line-by-
line detail” relates to tasks for which Ms. Ryan was compensated, this detail is not subject to the
work-product doctrine. Def.’s Reply 4.
Defendant’s argument is untenable. The fact that the redacted information relates to tasks
for which the expert was compensated does not alter that information’s privileged status. Of
course, details of work revealed in the expert’s work description would relate to tasks for which
she was compensated, but Plaintiffs have established that this description itself reveals protected
communications with counsel. This situation is analogous to protecting attorney-client
privileged information contained in counsel’s bills describing work performed. An attorney’s
description of work performed for a client in an invoice itself reflects privileged information that
is routinely protected as privileged, despite the fact that it appears in a bill. See Chaudhry v.
Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999) (recognizing that “‘correspondence, bills, ledgers,
statements, and time records which also reveal the motive of the client in seeking representation,
9
litigation strategy, or the specific nature of the services provided, such as researching particular
areas of law,’” are protected from disclosure) (quoting Clarke v. Am. Commerce Nat’l Bank, 974
F.2d 127, 129 (9th Cir. 1992)); see also Amster v. River Capital Int’l Grp., LLC, No. 00 CIV.
9708 (DCDF), 2002 WL 2031614, at *2 (S.D.N.Y. Sept. 4, 2002) (permitting a party to withhold
the “breakdown of the expert’s various services” appearing on an expert’s bill while ordering
production of a “statement of the total compensation paid to the expert”).
Rule 26(b)(4)(C)(i)’s requirement for disclosure of compensation for an expert’s study or
testimony is not intended to expose privileged information. As the 2010 Advisory Committee
Note suggests, the focus of permitted discovery is on the amount of expert compensation, not on
the tasks performed that led to compensation. Fed. R. Civ. P. 26, 2010 Advisory Committee
Note 172 (noting that any “benefits to the expert” are discoverable). The Note further states that
the objective of discovery into expert compensation “is to permit full inquiry into such potential
source of bias” - - not a roving inquiry into litigation strategy documented in invoices. Id. That
objective has been fully met here. Plaintiffs disclosed all required information relating to the
expert’s compensation. As Plaintiffs note in their Appendix, they produced Ms. Ryan’s
engagement letter, retainer, fee arrangement, and emails discussing her compensation. Further,
in her expert report, Ms. Ryan notes that she is being paid $725 per hour. Pls.’ Res. Appx-001;
Ryan Report 6. These disclosures comport with the exception to the work-product protection for
expert compensation. Additional disclosures of privileged communications on the invoices are
not required.
Conclusion
Defendant’s motion to compel filed on June 3, 2016, and renewed on August 16, 2016, is
DENIED.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
10