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Doe v. Luzerne County

June 19, 2008

G. DOE, II AND K. DOE, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF G. DOE, III PLAINTIFFS
v.
LUZERNE COUNTY, PENNSYLVANIA; LUZERNE COUNTY CHILDREN & YOUTH SERVICES; OLGA ARAUJO; REBECCA GLASSMAN; ROBIN RITSICK; DONALD PRANZONI; MARY PRANZONI; THE INSTITUTE FOR HUMAN RESOURCES AND SERVICES INC. DEFENDANTS



The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge

(MANNION, M.J.)

MEMORANDUM AND ORDER

Presently before this court is the defendants', Luzerne County, Luzerne County Children & Youth Services, Olga Araujo, Rebecca Glassman and Robin Ritsick ("the Luzerne County defendants"), Request for Production of Documents relied upon by the plaintiffs' expert. For the following reasons, the defendants' request will be granted.

I. Background

Because the court writes for the parties who are familiar with the case, only the facts relevant to the dispute will be discussed. A telephonic discovery dispute conference was held on Tuesday, May 27, 2008. At that conference, the Luzerne County defendants sought production by the plaintiffs of two documents relied upon by the plaintiffs' liability expert, Michael A. Nunno, that Nunno specifically cited to in his expert report.*fn1 (Doc. No. 120). Plaintiffs' counsel refused to produce these documents, relied upon by his expert, on the basis of the attorney work-product privilege. Id. The first document is a signed declaration of a witness, "Declaration of Beth Ann DeAngelo." (Doc. No. 120, Nunno Expert Report at 31). The second is a memorandum authored by Barry Dyller, Esq., "Memorandum from Barry H. Dyller on meeting with Sandy and Justine Walls." (Doc. No. 120, Nunno Expert Report at 33).

II. Discussion

The work product doctrine immunizes some discovery documents from disclosure. To seek protection of the work product doctrine, a party must show that the materials at issue were prepared by his or her attorney, or the attorney's agent, "in anticipation of litigation." Fed. R. Civ. P. 26(b)(3); see also Hickman v. Taylor, 329 U.S. 495, 505 (1947). An attorney's work product includes "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs . . . ." Hickman, 329 U.S. at 511. The work product privilege is based upon "the general policy against invading the privacy of an attorney's course of preparation." Bogosian v. Gulf Oil. Corp., 738 F.2d 587, 592 (3d Cir. 1984) (citing Hickman, 329 U.S. at 512)).

Rule 26(b)(3) establishes two tiers of protection for work product. First, the work prepared "in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need or undue hardship." In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003) (citing Fed. R. Civ. P. 26(b)(3)). Second, "core" or "opinion" work product includes the attorney's "mental impressions, conclusions, opinions or legal theories" and is afforded almost absolute protection from discovery. In re Cendant Corp., 343 F.3d at 663. If any document contains both fact and opinion work product, the adversary party is entitled to discovery of the facts as long as the opinions, mental impressions, etc. are properly redacted. Bogosian, 738 F.2d at 595.

The question before the court is whether documents disclosed to and relied upon by a testifying expert in his expert report are afforded the protection of the work product doctrine. Rule 26(a)(2)(B) states that expert disclosure, with respect to "a witness who is retained or specifically employed to provide expert testimony in the case . . . ," must include a written report that shall contain "a complete statement of all opinions to be expressed and the basis and the reasons for them; the data or other information considered by the witness in forming the opinions; [and] any exhibits that will be used to summarize or support them." Fed. R. Civ. P. 26(a)(2)(B) (emphasis added).

In 1993 the Federal Rules of Civil Procedure were amended. The court in Vitalo explained that the 1993 amendment to Federal Rule of Civil Procedure Rule 26(a)(2)(B) "vitiates a claim of attorney work-product with respect to any information considered by a party's expert, whether or not relied upon by that expert." Vitalo, 212 F.R.D. at 479; see In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001). The advisory committee note to the 1993 amendment of Rule 26(a)(2)(B) explains:

The report is to disclose the data and other information considered b y the expert and any other 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.

Fed. R. Civ. P. 26 advisory committee's note (1993 amendments) (emphasis added).

The plaintiffs, however, argue that the two documents cited to in the expert report are not discoverable because they are protected by the work product doctrine. The plaintiffs rely upon this court's rulings in both Krisa v. Equitable Life Assurance Society, 196 F.R.D. 254 (M.D. Pa. 2000) and St. Mary's Area Water Authority v. St. Paul Fire and Marine Insurance Co., 2006 WL 1670281 (M.D. Pa. 2006). However, this reliance is misplaced because both cases are clearly distinguishable from our facts. In Krisa and St. Mary's the challenged documents were merely disclosed to an expert. Here the documents were not only disclosed, but considered and relied upon by the expert.

In Krisa, the court held that "the disclosure requirements of Rule 26(a)(2) do not overcome the protection accorded counsel's mental impressions, conclusions, opinions, and legal theories when such work product is disclosed to an expert witness." Krisa, 196 F.R.D. at 255 (emphasis added). The documents in dispute were revealed in a privilege log after the expert was served with a subpoena for his deposition. Id. at 255. The documents claimed ...


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