WILLIAM D. WALL, United States Magistrate Judge.
Pending before the court is a motion by the defendants seeking to compel the production of documents that the plaintiffs, Construction Industry Services Corp., et al. ("CISCO"), claim are privileged. By order dated October 25, 2001, the plaintiffs were ordered to produce, for in camera review, the documents that they claim are protected from disclosure by attorney-client or work product privilege. After the order was issued, the plaintiffs produced some documents previously in dispute (e.g., the Whynot documents), and, on November 6, submitted those documents for which privilege is still invoked for this court's review. On November 27, the plaintiffs submitted six additional documents, with a letter explaining that they had been inadvertently omitted from the earlier submission.
The plaintiffs appear to make two arguments in regard to the documents. First, they claim that they are protected by the attorney client and/or work product privileges. They also claim, as a corollary argument, that those privileges have not been waived pursuant to Fed.R.Civ.P. 26(a)(2)(B) in regard to documents created or reviewed by Samuel Liebgold, a designated expert in this action, because Mr. Liebgold acted as both a consultant and an expert, and the disputed documents relate only to his role as consultant.
The role played by Samuel Liebgold is the crux of the inquiry on this motion. The documents reveal that Liebgold, an outside accountant for CISCO, played a significant role in evaluating the strength of the claims against the defendants in this lawsuit and in advising CISCO about the litigation. Liebgold's advice extended even to the choice of attorneys to conduct the litigation, but the documents contain little or no accounting advice. It is unclear from the record before the court why CISCO relied so heavily on Liebgold for advice outside the realm of accounting expertise. It is also unclear what relation Liebgold had to the various attorneys consulted by CISCO before and during the litigation. As explained in more detail infra, although some set of facts may exist under which the attorney client privilege may have extended to Liebgold, the failure of the plaintiffs to provide an explanatory affidavit from Liebgold and from a representative of CISCO or to otherwise establish a sufficient record to explain Liebgold's role and to support the application of the privileges requires a finding that a number of documents are not protected by the attorney client privilege. For the reasons set forth below, the motion is granted in part and denied in part.
The court is aware that the medical problems of CISCO's president and CEO, Louis Regine, may prevent him from preparing or signing an affidavit. This does not, however, relieve the plaintiffs from their burden of proof in establishing the application of the privileges. Another officer of CISCO could have submitted a sworn statement.
A. Application of the Attorney-Client Privilege:
Pursuant to Rule 501 of the Federal Rules of Evidence, substantive questions of privilege in this diversity action are governed by New York State law. See Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 638 (E.D.N.Y. 1997); see also Hendrick v. Avis Rent A Car Sys., 944 F. Supp. 187, 188 (W.D.N.Y. 1996) (citing Application of American Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989)). Section 4503(a) of New York's Civil Practice Law and Rules provides, in relevant part, that "[u]nless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication . . . ." At the core of the privilege is the existence of "a confidential communication between an attorney or his employee and the client in the course of professional employment." Id. As explained in more detail infra, this element is lacking in regard to several of the documents at issue, and the privilege was waived as to other documents. Several documents are protected from disclosure by the privilege.
1. Documents that are not communications between a client and counsel-documents numbered 1, 2, 3, 5, 6, 7, 10, 11, 12:
A number of the documents at issue, while they refer to attorneys who played some role in decisions about the litigation, are not communications between the party/client (CISCO), and their attorneys, and thus cannot qualify for the attorney-client privilege. Documents 1 and 2 are identical copies of a memo from Liebgold to Louis Regine, the President and CEO of CISCO, evaluating CISCO's litigation options based on the claims against the defendants in this action. Liebgold's advice, as set forth in the memo, was apparently based at least in part on the recommendations of two attorneys, Martin Siegel and Neil Connelley. Mr. Siegel is an attorney with the law firm representing the plaintiffs in this action, Berlack, Israels Liberman LLP. Mr. Connelley is described by the plaintiffs as one of the lawyers "who CISCO consulted to determine whether to commence this action." 11/5/01 Galvan Letter at 2.
The memo is not, however, a communication between CISCO and those lawyers, nor is it a communication between the lawyers and Liebgold. It is a communication between the party and that party's outside accountant regarding litigation. Although the content of the memo appears to include attorneys' advice, nothing on its face indicates who hired the attorneys, how Mr. Liebgold became privy to the legal advice embodied in the memo, or why this memo might qualify for protection under the attorney-client privilege. "As is the case with all privileges, the party invoking the attorney-client privilege bears the burden of establishing all essential elements of the privilege." Magee,172 F.R.D. at 638 (citing People v. Osorio, 75 N.Y.2d 80 (1989); Priest v. Hennessy, 51 N.Y.2d 62 (1980)). The plaintiffs have not met this burden.
The plaintiffs claim that "certain documents that [Liebgold] reviewed cut to the core of the attorney-client privilege and are not implicated by his role as an expert." 11/5/01 Galvan Letter at 1. The burden of a party withholding documents on the basis of privilege cannot be "`discharged by mere conclusory or ipse dixit assertions,'" however, and the plaintiffs offer an insufficient factual and legal basis for their claim of privilege in regard to these documents. von Bulow v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)); see also Strougo v. BEA Assocs., 199 F.R.D. 515, 519 (S.D.N.Y. 2001). It is clear from the record before the court that Liebgold was a trusted business advisor to Regine and CISCO, but that is not enough to bring him within the purview of the attorney-client privilege in regard to these documents. Even if the privilege did apply, the documents would be subject to a waiver analysis based on the disclosure of the attorneys' advice to Liebgold, and the privilege would be waived. See section A 2, infra.
Several other documents also fail to reflect a communication between client and attorney. Documents numbered 3, 5, 6, 7, 10, 11, and 12 are all memos between Liebgold and Regine that reference various attorneys who might represent the plaintiff in the potential lawsuit or raise questions about the progress of the lawsuit, but they were not sent to or from attorneys, and do not constitute "communication[s] between client and counsel." Thus, none of these documents is protected by the attorney client privilege. The questions of whether these documents might be protected from disclosure under the work product privilege, and whether that privilege is waived by the fact that Mr. Liebgold has been designated as the damages expert for the plaintiffs at trial, are discussed infra at section B.
Documents 11 and 12 are copies of the same memo. Although the memo is not to or from an attorney, it does summarize attorney advice that was given to Louis Regine, and might be considered as an attorney-client communication that was waived by disclosure to Liebgold. That disclosure would, in any event, require its production.
2. Communications between client and counsel disclosed to Liebgold-documents numbered 13, 29, 36, and unnumbered documents submitted on 11/27:
Document 13 is a memo from Regine to Liebgold, copied to an attorney, Ken Fiorella. Document 29 is a memo from Regine to Corrado Vasquez, the senior vice president of CISCO, copied to Liebgold, Katherine Buck, the Vice-President, Secretary and Treasurer of CISCO, and an attorney, Neil Connelley. Document 36 is a memo from Regine to a law firm, copied to Liebgold, Vasquez, and Buck. Document 36 annexes to the memo a letter from attorney Kenneth S. Fiorella to Regine. Thus, these documents are arguably communications between counsel and client (CISCO). The unnumbered documents submitted on November 27 are clearly communications between counsel and client. They consist of a memo from Martin Siegel to Louis Regine, dated October 25, 1999, copied to Liebgold; a letter from Neil Connelley to Regine dated March 4, 1997, copied to Liebgold; a letter dated January 8, 1999 from Neil Connelley to Regine, copied to Liebgold; a memo from Siegel to Regine dated May 17, 1999, copied to Liebgold; a letter from Siegel to Regine dated March 10, 1999, copied to Liebgold; and a letter from Fiorella to Regine dated August 25, 1998 that does not, on its face, represent disclosure to Liebgold, but which has been identified by plaintiff's counsel as having been disclosed to him. See 11/26 Galvan Letter.
The plaintiffs suggest that document 29 was not divulged to any third parties (see 11/5/01 Galvan Letter, at 3), but the face of the document labeled "29" in the submission to the court makes clear that it was copied to Liebgold.
The defendants argue that disclosure of these documents to third parties waives any privilege that might otherwise exist. Disclosure to Buck and Vasquez, officers of the plaintiff corporation, does not waive the privilege, but Liebgold is in a different position. He is an outside accountant, not an officer of CISCO, and not a party to the action.
"Voluntarily disclosing the information contained in the documents to nonparties waives the attorney-client privilege, unless such disclosure was `necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.'" Strougo, 199 F.R.D. at 522 (quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). The plaintiffs argue that disclosure to Liebgold falls into this category. Specifically, the plaintiffs argue that communications between a client's attorney and that client's outside accountant are privileged based on the recognition by New York state courts that "the attorney-client privilege may attach to communications between a client's agent and his attorney." Hendrick, 944 F. Supp. at 189.
While it is true that under New York law "communications to any person whose intervention is necessary to secure and facilitate the communication between an attorney and client are privileged, [such] as communications through an interpreter, a messenger or any other intermediary," that is not the case here. Id. CISCO argues that the disputed documents are privileged because "CISCO's accountant . . . acted on CISCO's behalf when [he] communicated with CISCO's counsel." The problem with these arguments is that the documents do not in any way suggest that Liebgold's involvement was necessary to facilitate the communication between CISCO and its attorney, and the plaintiffs have not provided an explanation for the necessity of Liebgold's extensive involvement.
CISCO argues that the "Second Circuit has concluded that attorney-client communications shared with a client's outside accountant are privileged, analogizing such communications to a situation in which a `client speaking a foreign language' requires the assistance of an `interpreter.'" 10/9/01 Galvan Letter at 2 (citing United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)). The plaintiffs' argument takes the holding in Kovel too far. Nothing in these documents suggests that Liebgold was assisting the attorney in rendering legal advice to CISCO by "interpreting" accounting principles to the lawyer. Indeed, other than a reference to cost-effectiveness in the attorney letter to Regine annexed to document 36, and a general discussion in a number of documents of the costs that might be incurred in the lawsuit, the documents do not involve accounting principles in any way.
The plaintiffs' real argument seems to be that disclosure of any attorney-client document to the client's outside accountant does not waive the attorney client privilege. The court does not agree, and finds that the attorney-client privilege as to these documents was waived by disclosure to Liebgold. As the court in Strougo found , "disclosure to an outside accountant whose expertise is crucial to the lawyer's assessment of his client's case would not waive the privilege, while disclosure to the client's accountant who was not involved in the litigation would waive the privilege." Here, Liebgold was obviously very involved in the litigation, but nothing in the disputed documents suggests that his assistance was crucial to the lawyer's assessment of the case. Indeed, what is reflected in the documents before the court is that information was disclosed to Liebgold so that he could offer CISCO his assessment of the case, outside the accounting context.
Even if the plaintiffs were seeking primarily accounting advice, there would be a waiver under these circumstances. As the Second Circuit held in Kovel, "[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service (citations omitted), or if the advice sought is the accountant's rather than the lawyer's, no privilege exists." 296 F.2d at 922. In In re Horowitz, 482 F.2d 72 (2d Cir. 1973), the Second Circuit found that where advice "had already been obtained from the lawyers and the communications were then made available by the client to the accountant for purposes unrelated to the seeking of legal advice. . . . We deem it clear that subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege." Another court has found that "the application of the attorney/client privilege to communications with an accountant depends upon whether the accountant is acting as a means of translating financial data for the attorney or rather is acting as a financial advisor." Summit Ltd. v. Levy, 111 F.R.D. 40, 41 (S.D.N.Y. 1986). Here, Liebgold was not translating financial data for the attorney, and thus disclosure to him of the documents in question waives the privilege.
The court is confronted here with a situation in which the outside accountant offered broad-based litigation advice to the client, advice that was sometimes shared with attorneys and sometimes not. While the court recognizes that everyone involved, including the various attorneys, apparently believed that Mr. Liebgold came under the umbrella of the privilege, the requisite elements have not been established. Under these circumstances, the court finds that the attorney client privilege was waived as to documents 13, 29, 36, and the unnumbered documents submitted on November 27th.
As discussed in greater detail infra at section B, although these documents are not protected by the attorney-client privilege, all of them would have been protected by the work product privilege, if not for Liebgold's designation as an expert.
3. Documents protected from disclosure by the attorney client privilege-documents numbered 15, 16, 18, 24, 30 and 35:
Documents 15, 16, 18 and 24 are communications between Regine and CISCO's attorney, attaching drafts of the attorney's letters to potential defendants in this lawsuit. The defendants argue that drafts of these letters must be produced, but this court finds that these documents meet the standard for attorney-client communications, were not disclosed to outside parties other than principals of the plaintiff corporation, and are protected by the attorney-client privilege.
Document 30 is a memo from Regine to attorney Neil Connelley, dated March 14, 1997. On its face, it was not copied to third parties and is privileged. The court notes, however, that there is a discrepancy between the description of documents 29 and 30 on the "Table of Documents Withheld by CISCO and Challenged by Hanover" submitted by the defendants, and the labeling of those documents in the submission to the court, and the numbers may have been transposed. The court has based its rulings on the documents submitted, not the Table of Documents description. If document 30 was disclosed to Liebgold, the privilege has been waived. If document 29 was not disclosed, it can be withheld.
Document 35 is a fax sheet memo from Regine to an attorney, attaching an article for his review, not copied to other parties. It, too, is protected by the attorney client privilege. As explained in more detail infra, these documents are also protected by the work product privilege, and, because they were never reviewed by Liebgold, the privilege has not been waived by virtue of Liebgold's role as a testifying expert.
B. Application of the Work Product Privilege :
1. Are the documents protected by the work product privilege pursuant to Rule 26?
The plaintiffs also invoke the work product privilege. Fed.R.Civ.P. 26 (b)(3) provides that, "[s]ubject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for [a] party, or by or for that . . . party's representative (including the . . . party's attorney, consultant, surety, indemnitor, insurer or agent). . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case . . ." As with the attorney-client privilege, the party invoking the work product privilege bears the burden of establishing all its elements. See Magee, 172 F.R.D. at 640 (citing United States v. Constr. Prods. Research, 73 F.3d 464, 473 (2d Cir.), cert. denied, 117 S.Ct. 294 (1996) (additional citations omitted)).
The threshold question is, therefore, whether the documents at issue were prepared in anticipation of litigation by CISCO or Cisco's representative. The court finds that they were. The documents all address the litigation that is now before the court, either prior to its inception or after, and meet the "prepared because of litigation" standard set forth by the Second Circuit in United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998). As to the issue of whether they were prepared by CISCO's "representatives" so as to come under the protection of the privilege, the court finds that requirement is also met. Louis Regine, CISCO's president, prepared a number of them, others were prepared by attorneys, and still others were prepared by other representatives of CISCO, including Liebgold.
Although the work product privilege usually works to protect "attorneys' mental impressions, opinions or legal theories concerning specific litigation" from discovery, Horn Hardart Corp. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir. 1989); see also In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000), it is also extended, by the very language of the rule itself, to the work product of other representatives of the party, including "the . . . party's . . . consultant, surety, indemnitor, insurer or agent." Generally, "the privilege aims to establish a zone of privacy for strategic litigation planning and to prevent one party from piggybacking on the adversary's preparation," and extending the privilege to representatives other than attorneys advances that goal. Adlman, 68 F.3d at 1501. Thus, the court finds that the work product privilege does apply to these documents.
Moreover, disclosure of these documents to third parties does not, in and of itself, constitute a waiver of the privilege. "Because the work product doctrine aims not only to preserve confidentiality, but also to protect the integrity of the adversary system, the privilege `is not automatically waived by any disclosure to a third party.'" Magee, 172 F.R.D. at 641 (quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982)). Instead, "[p]rotection is waived only if such disclosure `substantially increases the opportunity for potential adversaries to obtain the information.'" Id. (citing In re Grand Jury Subpoenas Dated December 18, 1981 and January 4, 1982, 561 F. Supp. 247, 1257 (E.D.N.Y. 1982) (additional citations omitted)). Thus, even if Liebgold, Buck or Vasquez were considered to be third parties, disclosure to them did not substantially increase such opportunity, and the privilege was not waived in that way. Finally, the defendants have not made a showing of substantial need for the materials in the preparation of their case (outside the context of Liebgold's role as testifying expert), and the work product privilege would thus apply to all of the documents at issue.
The inquiry cannot end there, however, because every one of the documents was reviewed or prepared by Samuel Liebgold, who has been retained by the plaintiffs to provide expert testimony at trial, and his review of the documents may constitute a waiver of the work product privilege under Rule 26(a)(2)(B).
2. The application of Rule 26(a)(2)(B):
The plaintiffs have described Samuel Liebgold as both the outside accountant who worked as a financial consultant and business advisor to CISCO and as Cisco's designated damages expert at trial. This raises the question of what documents a testifying expert who is also allegedly a consultant must disclose pursuant to Fed.R.Civ.P. 26(a)(2)(B). That subsection mandates disclosure of all information "considered" by an expert in forming his or her opinion, despite the arguable application of attorney client privilege or the work product doctrine. Prior to 1993, information about experts was obtained largely through interrogatories, and "courts held widely divergent views as to the discoverability of work product information that had been shared between counsel and a testifying expert." Karn v. Ingersoll Rand, 168 F.R.D. 633, 635-36 (N.D.Ind. 1996) (citing Intermedics, Inc. v. Ventitrex, Inc., 139 F.R.D. 384 (N.D.Cal. 1991)). In 1993, the Rule was amended to address the issue.
Pursuant to the 1993 amendments, Fed.R.Civ.P. 26(a)(2)(B) now requires that testifying experts must submit a written report containing "a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions;" and other material. The Advisory Committee Notes to the 1993 Amendments state that the expert report must "disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert's opinions. Given this obligation of disclosure, litigants should no longer be able to argue 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."
Although the Second Circuit has not yet ruled on the issue of whether and to what degree the work product privilege applies to material presented to an expert witness who will testify at trial, and other courts are divided on the issue, the undersigned has found that the 1993 revision to Rule 26(a)(2)(B) does not exempt "core" work product from the disclosure requirement, nor does it limit disclosure to factual material as opposed to mental impressions or opinions of counsel. See Weil v. LISB, CV 94-1292 (E.D.N.Y. filed Oct. 11, 2001) (WDW). This result is mandated by the plain language of the Rule itself, and is buttressed by both the explicit Advisory Committee comments and the weight of authority. The Court of Appeals for the Federal Circuit, the only Circuit to address this issue, noting contrary authority at the district court level, held that "the 1993 amendments to Rule 26 . . . make clear that documents and information disclosed to a testifying expert in connection with his testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report," including core attorney work product. In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001).
Courts in numerous jurisdictions have reached the same conclusion as the Federal Circuit's on this issue, basing their rulings on the plain language of the amended rule, the Advisory Committee Notes, and various policy considerations. See, e.g., MCI Communications Corp. v. Dataline, Inc., 2001 U.S. Dist. LEXIS 18144, at *1-2 (Oct. 29, 2001); In re Air Crash at Dubrovnik, Croatia on April 3, 1996, 2001 U.S. Dist. LEXIS 14334, at *8 (D.Conn. June 4, 2001); Amway Corp. v. Procter Gamble Co., 2001 U.S. Dist. LEXIS 5317, at*3 (W.D.Mich. Apr. 17, 2001); Suskind v. Home Depot Corp., 2001 U.S. Dist. LEXIS 1349, WL 92183, at *5 (D.Mass. Jan. 2, 2001); Johnson v. Gmeinder, 191 F.R.D. 638, 645 (D.Kan. 2000); Simon Prop. Group, L.P. v. mySimon, Inc., 194 F.R.D. 644, 647 (S.D.Ind. 2000); TV-3, Inc. v. Royal Ins. Co. of America, 193 F.R.D. 490, 491, aff'd,194 F.R.D. 585, 589 (S.D.Miss. 2000); W.R. Grace Co. — Conn. v. Zotos, Int'l, Inc., 2000 U.S. Dist. LEXIS 18096, at * 10-11 (W.D.N.Y. Nov. 2, 2000) (citing two additional, unpublished W.D.N.Y. decisions) ; Culbertson v. Shelter Mut. Ins. Co., 1999 U.S. Dist. LEXIS 2295 (E.D.La. Mar. 2, 1999); Lamonds v. General Motors Corp., 180 F.R.D. 302, 305 (W.D.Va. 1998); F.D.I.C. v. First Heights Bank, FSB, 1998 U.S. Dist. LEXIS 21506, at *13 (E.D.Mich. Mar. 3, 1998); Baerga v. Hospital for Special Surgery, 1998 U.S. Dist. LEXIS 17716, at *1 (S.D.N.Y. Nov. 9, 1998); B.C.F. Oil Ref., Inc. v. Consolidated Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997); Barna v. United States, 1997 U.S. Dist. LEXIS 10853, WL 417847, at *2 (N.D.Ill. July 18, 1997); Musselman v. Philips, 176 F.R.D. 194, 202 (D.Md. 1997); Furniture World, Inc. v. D.A.V. Thrift Stores, 168 F.R.D. 61 (D.N.M. 1996); Karn v. Ingersoll Rand, 168 F.R.D. 633, 635-36 (N.D.Ind. 1996); Baxter Diagnostics, Inc. v. AVL Scientific Corp., 1993 U.S. Dist. LEXIS 11798 (C.D.Cal. Aug. 6, 1993).
As noted, the 1993 amendments, inter alia, added subsection (a)(2) to require the production of all materials "considered" by the expert in forming his opinions. As the Karn court noted, the "drafters of the new Rule clearly contemplated that the term `considered' was something different than the term `relied,' given that they rejected an earlier draft version of subdivision (a)(2), which required that the expert's report set forth `the data or other information relied upon in forming such opinions.' 137 F.R.D. 53, 89 (1991) (additional citation omitted)." Karn, 168 F.R.D. at 635. "`Considered,' which simply means `to take into account,' clearly invokes a broader spectrum of thought than the phrase `relied upon,' which requires dependence on the information." Id. (citing Webster's New Riverside Univ. Dictionary at 301, 993 (1984) Baxter Diagnostics, Inc. v. AVL Scientific Corp., 1993 U.S. Dist. LEXIS 11798 (C.D.Cal. Aug. 6, 1993) (court defined word "considered" as encompassing not only documents upon which the experts relied in forming their opinions but also those documents reviewed by the experts as well)). The choice of the broader word "considered," in conjunction with the Advisory Committee's explanation that it thought the change would forestall future argument about the application of privilege to documents considered by the expert, convinces this court that the 1993 amendment "definitely proscribes" work product protection in this context.
This result rests on significant policy considerations. First, requiring disclosure of all material considered by the expert, including otherwise privileged work product, will help promote more effective cross-examination, and will reveal the extent, if any, of the influence counsel may have had on Liebgold's testimony. Such revelation is essential, given the current role of expert testimony in federal litigation. The use of expert testimony has grown exponentially over the last decades, and it presents unique challenges to the fact finder faced with the task of weighing the credibility of an expert witness. As the Supreme Court has observed, expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993). The trial judge thus "depends upon the efficacy of cross-examination by the party opposing the expert's testimony to point out any weaknesses which might affect its admissibility, as does the jury in determining how much weight to give to the expert's testimony." Musselman, 176 F.R.D. at 200. Given the importance that expert testimony can assume, "a jury is entitled to know everything that influenced an expert's opinion in order to assess his credibility," including legal theories or conclusions about a case that an attorney has shared that may have shaped the expert's opinion. Barna, 1997 WL 417847 at *2.
The plaintiffs do not dispute this rule, but argue that Mr. Liebgold falls into a special category of experts, who have also been hired as consultants in an area discrete from the area of expertise about which they will testify at trial.
3. Samuel Liebgold's Dual Role as Consultant/Expert:
Specifically, CISCO argues that the documents that the defendants seek have "nothing to do with [Liebgold's] role as an expert in this case. As CISCO's accountant, Mr. Liebgold has acted as a business advisor to CISCO." In that capacity, the plaintiffs argue, "CISCO consulted Mr. Liebgold on a variety of matters, including the decision whether to bring this lawsuit. To that end, Mr. Liebgold was part of the CISCO team that received copies of legal memoranda and letters from the attorneys who CISCO consulted to determine whether to commence this action." The plaintiffs continue, claiming that Liebgold "received those documents prior to the commencement and, therefore, long before he was designated as an expert in this case." 11/5/01 Galvan Letter at 2.
The "gray" area of the application of Rule 26 to a consultant/expert was discussed in B.C.F. Oil, 171 F.R.D. at 61. That court noted that an earlier decision had found it "conceivable that an expert could be retained to testify and in addition to advise counsel outside of the subject of his testimony. Under such a circumstance it might be possible to claim a work product privilege if this delineation were clearly made." Id. (quoting Beverage Market v. Ogilvy Mather, 563 F. Supp. 1013, 1014 (S.D.N.Y. 1983)). B.C.F. Oil also considered the case of Detwiler v. Offenbecher, 124 F.R.D. 545 (S.D.N.Y. 1989), and concluded that "the rule to be gleaned from these two Southern District cases is that documents having no relation to the expert's role as an expert need not be produced but that any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery." B.C.F., 171 F.R.D. at 62. The need for clarity regarding the distinction between documents having no relation to an individual's role as expert and those "considered" by that individual in the production of his or her expert report has been strictly enforced. See, e.g., In re Air Crash, 2001 U.S. Dist. LEXIS 14334 at *9-39 (citing Messier v. Southbury Training Sch., 1998 U.S. Dist. LEXIS 23221, *7 (D.Conn. June 29, 1998)); see also W.R. Grace Co. — Conn., 2000 U.S. Dist. LEXIS 18096 at *20. The In re Air Crash court quoted Messier for the proposition that where "an expert is retained as both a consultant and a testifying witness, the work-product doctrine may be invoked to protect work completed by the expert in [his] consultative capacity as long as there exists a clear distinction between the two roles." In re Air Crash, 2001 U.S. Dist LEXIS 14334 at * 9. "The Messier court included a caveat, however, stating that `any ambiguity about which function was served by the expert when creating a document must be resolved in favor of discovery.'" Id. at *10.
Here, where Liebgold's role as a litigation consultant was so pervasive, the court finds that the delineation between his two roles has not been clearly made, and the ambiguity must be resolved in the defendants' favor. This result is mandated by the policies, discussed supra, underlying the requirement that a testifying expert disclose all materials that he considered in reaching his opinion, and on the rule that the party seeking to compel the production of the documents "`should not have to rely on the [resisting party's] representation that the documents were not considered by the expert in forming his opinion.'" Id. at 12 (quoting B.C.F. Oil, 171 F.R.D. at 62)).
The plaintiffs argue that with respect to Liebgold, "the documents he reviewed historically (i.e., before this action was filed) and which the defendants now seek, have nothing to do with . . . his role as an expert in this case." Plaintiffs claim that the disputed documents were reviewed by Liebgold "long before he was designated as [a damages] expert in this case," and that "it is possible to distinguish between documents that relate to damages and documents that relate to liability." 11/5/01 Galvan letter at 2. While it is true that liability and damages are separate components of a lawsuit, and little if anything in the documents at issue overtly addresses damages, the court finds that it is impossible to segregate Liebgold's role as a business consultant who advised CISCO regarding many aspects of the litigation with his role as a testifying expert. Nothing before the court demonstrated with clarity how Liebgold, in his capacity as a damages expert, could not have considered, on some level, his comprehensive knowledge of, and pre — and post — litigation exposure to, all confidential information regarding the lawsuit. Moreover, the fact that Liebgold acted as a consultant prior to being "hired" as the damages expert cannot be the determining factor. If chronology was determinative, the opportunity for parties to shield disclosure of otherwise discoverable documents considered by their experts simply by hiring those individuals first as consultants and later as experts would be too great.
Thus, this court finds that the ambiguity surrounding the documents must be resolved in favor of the defendants with a finding that the work product privilege has been waived.
C. Conclusion:
The plaintiffs have two options — they can produce documents numbered 1, 2, 3, 5, 6, 7, 10, 11, 12, 13, 29, and 36, along with the unnumbered documents submitted on November 27th, or they can designate a new expert. Documents numbered 15, 16, 18, 24, 30 and 35 need not be produced, inasmuch as they are protected by both the attorney client and work product privileges, and there is no indication that they were "considered" or even seen, by Mr. Liebgold. The plaintiffs shall either produce the documents or designate a new damages expert by December 17, 2001.
See comments re documents 29 30 on page 9, supra. If documents numbered 29 and 30 were mismarked in the submission to the court, whichever document was disclosed to Liebgold must be produced, and whichever one wasn't may be withheld.
SO ORDERED