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United States v. American Electric Power Service Corp.

December 28, 2006

UNITED STATES OF AMERICA, PLAINTIFF, AND STATE OF NEW YORK, ET AL., PLAINTIFF-INTERVENORS,
v.
AMERICAN ELECTRIC POWER SERVICE CORP., ET AL., DEFENDANTS.
OHIO CITIZEN ACTION, ET AL., PLAINTIFFS,
v.
AMERICAN ELECTRIC POWER SERVICE CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Kemp

JUDGE SARGUS

ORDER

In these consolidated environmental cases, two discovery-related issues have recently arisen. After an informal conference failed to resolve the disputes, the Court requested each party to file a memorandum with respect to each of these issues. After the memoranda were filed, the parties advised the Court that one of the two issues, relating to discovery of emissions controls and other information at AEP Power Plants not the subject of this lawsuit, was being discussed further between the parties and might be resolved without the need for court intervention. The other issue relates to redactions made from a report which was listed by Mark Gray, a vice president for Engineering Services at AEP Service Corporation, and who has been designated as an expert witness in this case. The report is apparently entitled "Multi-Emissions Control Technology Examination" and is referred to by the parties as the Alstom Report. For the following reasons, the Court concludes that the redacted portions of the report must be disclosed under Fed.R.Civ.P. 26(a)(2).

The facts of this dispute, according to the parties' memoranda and their supplemental filings, the last of which was made on December 20, 2006, are as follows. Mr. Gray has been an AEP employee for some time. In connection with his employment work, he received a copy of the Alstom Report. Those portions of the report which were redacted prior to its production to the plaintiffs were included in that report. They apparently include both attorney-privileged communications and certain information which AEP believes to be irrelevant to the subject matter of Mr. Gray's expert opinions. Mr. Gray was later designated as an expert witness. He listed the Alstom Report as a document which he reviewed in connection with the formulation of his opinions in this case. However, it is apparently undisputed that the copy of the Alstom Report which he reviewed in connection with preparing his expert report was the redacted version produced to plaintiffs. The question presented is whether, under this relatively sparse set of facts, AEP is entitled to withhold the redacted portions or must disclose them under Rule 26(a)(2).

As amended in 1993, Fed.R.Civ.P. 26(a)(2) requires the party using an expert witness in litigation to produce a report containing a complete statement of the expert's opinions as well as "the data or other information considered by the witness in forming the opinions...." The Advisory Committee Notes to the 1993 Amendments indicate that the disclosure obligation was intended, in part, to prevent litigants from arguing that "materials furnished to their experts to be used in forming their opinions - whether or not ultimately relied upon by the expert -are privileged or otherwise protected from disclosure when such persons are testifying or being deposed." In other words, the rule was worded specifically to provide the opposing party with access to all materials reviewed or considered by the expert, whether or not the expert report ultimately refers to those materials as a basis for his or her opinions. See also Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006) ("Rule 26 now requires disclosure of all information provided to testifying experts").

In the case of an expert witness specially retained for purposes of litigation, applying the disclosure provisions of Rule 26 is relatively straightforward. Presumably, the only information the expert will have received concerning the subject-matter of his or her opinion will be the information supplied by counsel or by the party who has retained the expert. Thus, the entirety of that information must be disclosed, even if counsel or the party has chosen to share materials subject to the attorney-client privilege or some other privilege or protection recognized by law.

In the case of an expert witness who is also an employee of a party, or who has worked as a consultant to a party, the application of the rule is less obvious. Especially when an employee is involved, it is logical to assume that the employee has received many documents over the course of his or her employment which have either a direct or tangential relationship to the subject matter about which the employee will testify. The question then becomes how the Court can draw an appropriate line so that the disclosure obligations under Rule 26 are met and, at the same time, the witness' employer is protected from an unwarranted disclosure of privileged communications which have no bearing on the expert opinions expressed.

Courts faced with this issue have struggled to create any type of bright-line rule. As least one court has suggested that if such documents cannot be separated out into neat categories, some of which are clearly pertinent to the expert's opinion and some of which are totally irrelevant, any ambiguity must be resolved in favor of disclosure. See B.C.F. Oil Refining v. Consolidated Edison Co., 171 F.R.D. 57 (S.D.N.Y. 1997). Other courts reports have attempted to resolve the issue by creating a broad definition of what it means to say that an expert "considered" materials for purposes of Rule 26(a)(2). Thus, in Johnson v. Gmeinder, 191 F.R.D. 638, 647 (D. Kan. 2000), the Court concluded that an expert considered materials within the meaning of that rule if the expert "has read or reviewed the privileged materials before or in connection with formulating his or her opinion." The Court notes that the parties in this case agreed to a definition of "considered" in connection with expert disclosures. That definition does not appear to differ materially from the definition adopted by Gmeinder or other similar decisions.

A very similar situation was presented in Western Resources, Inc. v. Union Pacific R. Co., 2002 WL 181494 (D. Kan. Jan. 31, 2002). There, the testifying expert had been a consultant to the plaintiff for a number of years prior to the litigation in which he was identified as an expert and had worked on issues which were related in some way to the issue in the litigation. When he was identified as an expert witness, the plaintiff turned over only the specific data and information which the expert considered in drafting his report, and withheld the balance. The Court first noted, correctly, that if privileged information is disclosed to a testifying expert, that privilege is waived. The Court next noted that Rule 26(a)(2) contemplates disclosure of all materials which are considered by an expert even if the expert does not rely upon them in formulating his or her opinion. It noted that "documents considered but rejected by the expert trial witness could be even more important for cross-examination than those actually relied upon by him." Western Resources, supra, at *9 n.13, quoting Eliasen v. Hamilton, 111 F.R.D. 396, 400 n.5 (N.D. Ill. 1986). Finally, relying upon the definition of the term "considered" set forth in the Gmeinder, the Court concluded that the expert "considered" all documents "authorized or received by him [for the period of nine years] in his capacity as a...consultant and/or a...non-testifying expert...in formulating his opinion as a testifying expert in this lawsuit." Id. at *10. In so holding, the Court approved the rule that ambiguities be resolved in favor of discovery, and concluded that it was at least uncertain whether a document reviewed by the expert witness as a consultant or non-testifying expert had been considered in connection with the current expert opinion if the subject matter of the documents at issue and the subject matter of the expert opinion were essentially the same.

There are certain difficulties engendered by a broad application of the Western Resources rationale. Especially for an employee who has reviewed a vast number of documents over the course of a long career, going back and ferreting out all documents related to the subject-matter of an expert opinion could be extremely burdensome and would likely produce an extraordinary amount of irrelevant or unhelpful information. Additionally, by deeming any privileges attaching to all such documents to have been waived, the Court would also intrude significantly upon the privilege involved. In fact, were such a rule to be applied in wholesale fashion, it might discourage an employer from ever designating an employee as a testifying expert because of the fear that all manner of privileged documents and communications would thereby be subject to disclosure simply because they relate in some way to the subject matter of the witness' testimony.

Fortunately, this case does not appear to present those sorts of difficulties. Here, the Alstom Report was specifically listed as a document which was considered and relied upon by Mr. Gray in formulating his expert opinion. It is the only document at issue here. Further, he apparently reviewed the redacted portions of the document in the relatively recent past. Because the redactions in question were made to a report which he deemed significant enough to rely upon in formulating his expert opinion, the Court concludes that they touch on the same subject matter as his opinion. As the other courts which have dealt with this issue have noted, the party disclosing the expert may not simply rely upon a self-serving declaration of the expert himself that in formulating that opinion he neither considered nor relied upon certain information which he reviewed and which is relevant to the subject matter of his opinion. Consequently, under these precise circumstances, the Court concludes that any privilege attaching to those portions of the Alstom report which have been redacted has been waived as a result of the designation of Mr. Gray as an expert witness and the inclusion of the report as a document which he considered in reaching his opinion. The only way in which plaintiffs can effectively cross-examine him concerning his opinion is to see a full copy of the report. Consequently, defendants will be ordered to produce the report in 15 days.

Based upon the foregoing, the defendants are directed to produce an unredacted copy of the Alstom report to plaintiffs within 15 days of the date of this order.

Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or ...


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