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Anne E. Fialkowski v. David Perry; Sherryl R. Perry; and Stanley A. Metter

June 29, 2012


The opinion of the court was delivered by: DuBOIS, J.



The parties have requested the Court's assistance in resolving a discovery dispute.*fn1 The dispute centers on plaintiff's refusal to produce materials prepared by plaintiff at the direction of her attorney which plaintiff's expert witness reviewed in preparing his report. Plaintiff asserts that the materials defendants requested are protected from disclosure under the attorney-client privilege and the work product doctrine. Defendant contends that, regardless of privilege, these materials are discoverable under Federal Rules of Civil Procedure 26(a)(2)(B) and (b)(4)(C) because plaintiff's attorney gave these materials to plaintiff's testifying expert for the expert to "consider" and "rely on" in forming his expert opinions.

For the reasons that follow, the Court grants defendants' request for production of the parts of all requested documents containing "facts or data" that plaintiff's expert reviewed or considered or "assumptions" that the expert relied on in forming the opinions he expressed. The request is denied in all other respects.


This case involves plaintiff Anne E. Fialkowski's claims that defendants David Perry, Sherryl R. Perry, and Stanley A. Metter defrauded her and breached the contractual, legal, and fiduciary obligations they owed to her. (Br. Supp. Pl.'s Mot. Leave File Am. Compl., Pl.'s Mot. Leave Amend Compl. 1.) Plaintiff and defendants David and Sherryl Perry were partners at the law firm of Perry, Fialkowski & Perry ("PF&P"). (Id.) Defendant Metter was PF&P's accountant. (Id.) Plaintiff's claims arise from her assertions that defendants David and Sherryl Perry "unilaterally and retroactively reduced [her] partnership share after she underwent spinal cord surgery" and that defendant Metter aided David and Sherryl Perry in improperly spending hundreds of thousands of dollars of PF&P revenue on personal expenses. (Id.)

The present discovery dispute arises from defendants' request that plaintiff produce materials that plaintiff's expert witness, certified public accountant Howard Lapensohn, identified in paragraph 17 of the "Document Review" portion of the written report he prepared pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). (Def. Metter's Letter/Brief, dated 06/08/12, at 1.) In his report, Mr. Lapensohn stated that "[a]s part of my engagement in expressing the below opinion, I have reviewed . . . [v]arious spreadsheets and document analysis [that] Plaintiff [prepared] from QuickBooks records, tax returns, and [d]iscovery produced by Defendant Metter." (hereinafter "requested materials") (Id.) Plaintiff's attorney describes one of the requested materials as a thirty-nine-page document that contains plaintiff's own "explanation and assessment of . . . discovery documents and how they relate to the claims [she has] asserted and the various defenses raised by defendants." (Pl.'s Letter/Brief, dated 06/15/12 ("Pl.'s 06/15/12 Letter"), at 1.)

Plaintiff objects to the production of the requested materials on two grounds. First, plaintiff asserts that the requested materials are "plainly . . . covered" by the attorney-client privilege because plaintiff prepared them for the purpose of assisting her attorney "in understanding the Perry, Fialkowski & Perry QuickBook records and documents produced in discovery by defendants." (Id.) Second, plaintiff asserts that the requested materials are protected work product under Federal Rule of Civil Procedure 26(b)(4)(C), which plaintiff contends was added to the Federal Rules in 2010 "for the specific purpose of providing work product protection for attorney-expert communications." (Id.)


Federal Rule of Civil Procedure 26(b)(1) provides generally that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). As the party claiming a privilege, plaintiff has the burden of establishing that a privilege applies. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000).

At the heart of the parties' dispute is a disagreement over the effect of the 2010 Amendments to Rule 26. Plaintiff asserts that the language and intent of Rule 26, as amended in 2010, demonstrates that the materials at issue are privileged and are thus not discoverable. The Court disagrees. Before addressing plaintiff's assertions of the attorney-client privilege and the work product doctrine, the Court will briefly explain the development of Rule 26.

A. Law Prior to 2010 Amendments to Rule 26

In 1993, Rule 26 was amended to require parties to produce information without formal discovery requests from their opponents. Quinn Const., Inc. v. Skanska USA Bldg., Inc., 263 F.R.D. 190, 194 (E.D. Pa. 2009). With respect to testifying experts, the 1993 version of Rule 26 stated that any witness who "may" testify as an expert at trial "must" produce a written report that contained, among other things, "the data or other information considered by the witness in forming" all opinions. Id. (citing Fed. R. Civ. P. 26(a)(2)(B)(ii)). The Third Circuit has not directly addressed whether the 1993 amendments to Rule 26(a)(2)(B) were intended to require the disclosure of information that would otherwise be privileged. However, relying on the Advisory Committee's Notes to the 1993 Amendments, courts in this District and several federal courts of appeals have held that the 1993 version of Rule 26(a)(2)(B) required the production of otherwise privileged material. See, e.g., id. at 194-95; Fed. R. Civ. P. 26 advisory committee notes to 1993 amendments ("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."); Reg'l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006) (agreeing with "the majority view [before the 2010 Amendments] that Rule 26 . . . require[d] disclosure of all information provided to testifying experts").

Thus, under the pre-2010 version of Rule 26, the requested materials were discoverable. In the next section, the Court analyzes whether the ...

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