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Kontonotas v. Hygrosol Pharmaceutical Corp.

November 4, 2009

GEORGE KONTONOTAS
v.
HYGROSOL PHARMACEUTICAL CORPORATION, ET AL.



The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge

ORDER AND OPINION

Defendants Hygrosol Pharmaceutical Corporation and Spiro Spireas have filed a Motion to Compel Discovery. In it, they seek certain documents associated with the deposition of Frank A. Chrzanowski, Ph.D., Kontonotas's expert witness, which Kontonotas withheld as privileged. They also seek to compel Dr. Chrzanowski to answer certain deposition questions. For the reasons set forth below, Defendants' motion will be dismissed as moot to the extent that Kontonotas has already produced most of the disputed documents, and granted as it pertains to the two remaining documents, and as to the deposition questions.

I. Factual and Procedural Background

On September 24, 2009, Defendants served a subpoena upon Dr. Chrzanowski, who had been identified by Kontonotas as a testifying expert. Among other things, the subpoena directed Dr. Chrzanowski to produce his entire file pertaining to the case; all documents he reviewed before formulating his opinions; all correspondence between him and Kontonotas or his counsel; and any documents provided by any person relating to this lawsuit. Subpoena, attached to Motion as Exhibit A.

Counsel for Kontonotas provided responsive documents, as well as a privilege log setting forth a number of documents which he claimed were not discoverable. Privilege Log, attached to Motion as Exhibit B. After some correspondence between counsel as to the legal basis for the withholding of the documents, Defendants informed Kontonotas that they intended to file a discovery motion.

Then, on October 19, 2009, Defendants deposed Dr. Chrzanowski. Deposition Excerpts, attached to Amended Motion as Exhibit H. Kontonotas's counsel instructed Dr. Chrzanowski not to answer any questions regarding meetings between him and Kontonotas and/or his attorneys, on the basis of attorney-client privilege. Id.

On October 22, 2009, Defendants filed this motion, to which Kontonotas has now responded. Kontonotas asserts in his response that he has now forwarded to Defendants most of the documents entered in the privilege log, although he still denies that they are discoverable. He has also stated that he agrees to reconvene Dr. Chrzanowski's deposition. However, he asks that the final two documents in the privilege log be protected; one as attorney work product, and the other under both the work product and the attorney-client privileges. He also asks that Dr. Chrzanowski's second deposition not be held at his expense, as Defendants have requested.

II. Relevant Legal Standards

A. The Federal Rules

In relevant part, the federal rule on required disclosure from a testifying expert reads: Written Report. Unless otherwise stipulated or ordered by the court, [disclosure of an expert witness] 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; [and]

(ii) the data or other information considered by the witness in forming them [.]

Fed. R. Civ. P. 26(a)(2)(B).

In 1993, when the portion of Rule 26 set forth above was added, the Advisory ...


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