DAVID E. PEEBLES, United States Magistrate Judge
By letter dated February 6, 2003 from its lead counsel, John Allcock, Esq., defendant Hewlett Packard Co. has sought an order compelling discovery, specifically seeking three wholly or partially redacted documents prepared by, and produced in connection with the deposition of, plaintiffs' claim construction expert, Dr. James E. Smith. Plaintiffs oppose the application and seek a protective order regarding the redacted documents, contending that Dr. Smith has been retained to serve both as a testifying expert on the issue of claim construction, and as an expert consultant to assist counsel in connection with other issues in the case including, inter alia, infringement, but has not yet been designated as a testifying expert in any of those other areas.
Under the prevailing case management order, non-claim construction expert disclosure is not required until June 20, 2003.
The request and plaintiffs' opposition were discussed during a telephone conference conducted on February 6, 2003. The matter was again argued during a telephone conference conducted on February 7, 2003, following submission to the court of a letter dated February 6, 2003 from plaintiffs' lead counsel, Edward G. Poplawski, Esq., together with various relevant documents including the complete final declaration of Dr. James E. Smith, filed in support of plaintiffs' claim construction contentions, the two documents in which the redacted pages were included, and, for in camera review, non-redacted copies of the relevant pages, including Bates Nos. CR0310900, CR0310901, both included in a document entitled "Tutorial (draft) J.E. Smith, Sept. 29, 2002", and CR0310919, included within a document entitled "A. How Computers Work," also prepared by Dr. Smith.
At the close of the second above-referenced conference I determined, based upon my review of the relevant documents including an in camera inspection of the redacted excerpts, that they do not fall within or relate directly to Dr. Smith's role as a testifying expert and instead fall within the category of Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure, at least pending later potential designation of Dr. Smith as an expert to testify on the issue of infringement — and that there has been no showing of exceptional circumstances making disclosure of the redacted excerpts appropriate. Accordingly, and in reliance upon Rule 26(b)(4) as well as applicable case law, including Messier v. Southbury Training School, No. 3:94-CV-1706, 1998 WL 422858 (D. Conn. 1998) and B.C.F. Oil Refining. Inc. v. Consolidated Edison Company of New York, Inc., 171 F.R.D. 57 (S.D.N.Y. 1997), it is hereby
ORDERED that defendant's request for an order compelling discovery is DENIED, and it is further
ORDERED that plaintiffs' application for a protective order shielding from discovery unredacted copies of documents bearing Bates Nos. CR0310900, CR0310901 and CR0310919, is hereby GRANTED; and it is further
ORDERED that the clerk shall docket the aforementioned letters, dated February 6, 2003, of John Allcock, Esq., with attachments, and Edward Poplawski, Esq. with attachments, except that the redacted materials included for in camera inspection only, found at Attachments 4 and 5 to the Poplawski letter, shall be filed by the court under seal; and it is further
ORDERED, that the clerk is directed to forward copies of this order to counsel for the parties by first class mail.