Flags I v. Boston Five Cents Savings CV-90-340-B 05/24/93
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Flags I, Inc., et al
v. Civil No. 1-340-B
The Boston Five Cents Savings Bank, et al
O R D E R
This case concerns two related real estate development
projects. The Village at Granite Hills I and The Village at
Granite Hills II. Plaintiffs are various individuals and
entities that were engaged in the development of both projects.
Defendant Boston Five Cent Savings Bank ("Bank") was the
principal lender for the projects. Defendant Province Street
Corporation, a subsidiary of the Bank, was an eguity partner in
the projects with several of the plaintiffs.
In March 1990, several of the parties entered into a
Restructuring Agreement in which the Bank agreed to extend
additional credit for the projects in exchange for several
concessions from the plaintiffs. Plaintiffs' principal claim i
that the Restructuring Agreement violates the Bank anti-tying
laws, 12 U.S.C. § 1464(g) and 12 U.S.C. § 1972-75. Additional
claims and counterclaims arising from the financial arrangement
among the parties have also been asserted. This order addresses four discovery motions.
1. Plaintiffs' Motion to Compel Production of Documents and Answers to Questions Propounded at Depositions1
The Plaintiffs deposed defendants' witness, John Clifford on
December 3, 1991 and February 18, 1992. Clifford was employed as
an internal auditor in the Bank's asset management department
until April 1991. Clifford testified that he had reviewed
certain business documents relating to the Granite Hills projects
and created certain summaries, lists and memoranda regarding
these documents. Among the documents he created were workpapers
relating to vendors on the Granite Hill Projects whom he believed
had been paid twice for the same work. The plaintiffs seek
production of these workpapers and testimony from Clifford
concerning the workpapers, arguing that both are necessary to
prepare for cross-examination of Clifford. Plaintiffs also argue
that Clifford waived the work product privilege by reviewing the
documents to refresh his recollection immediately before his
deposition. The defendants, however, argue that the workpapers
are protected as work product under Federal Rule of Civil
Procedure 26(b)(3).
The court must determine, based on the deposition testimony
provided, (i) whether the documents and testimony in dispute are
10ther issues raised by this motion that are not discussed in this order were resolved by agreement. protected by the work product privilege under Federal Rule of
Civil Procedure 26(b)(3) and Hickman v. Tavlor, 329 U.S. 495
(1947), and (11) whether Clifford waived the privilege by
reviewing the documents to refresh his recollection before his
deposition. See Fed. R. Evid. 612; In re Atlantic Financial
Management Securities Litigation, 121 F.R.D. 141, 144 (D. MA
1988); Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 13 (N.D.I11.
1972) .
Clifford's testimony shows that while he initially came
across the information in the normal course of business, he
prepared the schedule of vendors allegedly paid twice at the
reguest of counsel and in preparation for litigation. (Clifford
II at 9-10, 44) . The schedule is therefore work product under
Rule 26(b)(3). Harper v. Auto Owners Insurance Co., 138 F.R.D.
655, 659 (S.D. Ind. 1991) .
Clifford's testimony does not show that he reviewed the
documents to refresh his memory before testifying. In volume I
on page 42, Clifford clearly states that he "didn't review" the
workpapers but merely identified them as his. Plaintiffs point
to page 24 of volume II when Clifford answered Attorney Topman's
guestion, "[w]hen was the last time you refreshed your
recollection with these documents," Clifford answered that he had
3 looked at them "before the last deposition". However, reading
this quotation in context, it becomes clear that the documents to
which Clifford refers on page 24 are workpapers dealing with the
escrow account, an entirely different issue and one which was
resolved by the parties without the court's intervention.
Finally, Clifford testified that one of defendants' attorneys
sent him some of the workpapers via fax prior to the deposition,
asking him to explain them. (Clifford Vol II at 5 and 90.)
Nowhere in the deposition, however, does Clifford state that he
reviewed the documents for the purpose of preparing for his
deposition. Thus, Clifford did not waive his work product
privilege by reviewing the documents for the purpose of
refreshing his recollection before his deposition.
Plaintiffs also ask the court to compel the production of
certain documents and testimony by defendants' expert witness,
Brian Reynolds. The Defendants have disclosed Reynolds as one of
their testifying expert witnesses. He has also served as a
consultant on various issues upon which he will not testify. The
plaintiffs claim that the various reports and summaries Reynolds
produced for the defendants in his capacity as consultant are not
privileged under Federal Rule 26(b)(3) because he is a testifying
expert and cannot be an expert and claim the work product
4 privilege at the same time.
Testimony and documents cannot ordinarily be compelled from
a testifying expert under Rule 26(b)(4)(A) on issues relating to
that expert's work as a retained consultant under Rule
26(b) (4) (B) . Inspiration Consol. Copper Co. v. Lumbermens Mutl.
Cas. Co., 60 F.R.d. 205, 210 (S.D. N.Y. 1973); but see Elco
Indus, v. Hogg, 1988 WL 20055, *3 (N.D. 111. 1988) (documents
discoverable where no clear delineation between expert's role as
consultant and testifying expert). As the court in Inspiration
Consol. Copper noted, an expert can "wear two hats" and can
advise on one subject and give testimony on another. JCd. Thus,
information provided to the defendants by Reynolds in his
capacity as a consultant under the direction of counsel and in
anticipation of litigation will gualify as work product material
under Federal Rule of Civil Procedure 26(b) (3) unless the
material pertains to the subject area about which he will
testify. See Beverage Mktq. Corp v. Qqlivv & Mather Direct
Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y. 1983).
Plaintiffs offer no other reason why this material should be made
discoverable. Accordingly, the court will not compel the
production of testimony and documents that pertain only to
subjects about which Reynolds will not testify.
5 2. Plaintiffs' Motion to Compel Answers to Interrogatories and Production of Documents
Plaintiffs seek to compel the defendants to disclose
documents which postdate the commencement of the litigation.
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Flags I v. Boston Five Cents Savings CV-90-340-B 05/24/93
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Flags I, Inc., et al
v. Civil No. 1-340-B
The Boston Five Cents Savings Bank, et al
O R D E R
This case concerns two related real estate development
projects. The Village at Granite Hills I and The Village at
Granite Hills II. Plaintiffs are various individuals and
entities that were engaged in the development of both projects.
Defendant Boston Five Cent Savings Bank ("Bank") was the
principal lender for the projects. Defendant Province Street
Corporation, a subsidiary of the Bank, was an eguity partner in
the projects with several of the plaintiffs.
In March 1990, several of the parties entered into a
Restructuring Agreement in which the Bank agreed to extend
additional credit for the projects in exchange for several
concessions from the plaintiffs. Plaintiffs' principal claim i
that the Restructuring Agreement violates the Bank anti-tying
laws, 12 U.S.C. § 1464(g) and 12 U.S.C. § 1972-75. Additional
claims and counterclaims arising from the financial arrangement
among the parties have also been asserted. This order addresses four discovery motions.
1. Plaintiffs' Motion to Compel Production of Documents and Answers to Questions Propounded at Depositions1
The Plaintiffs deposed defendants' witness, John Clifford on
December 3, 1991 and February 18, 1992. Clifford was employed as
an internal auditor in the Bank's asset management department
until April 1991. Clifford testified that he had reviewed
certain business documents relating to the Granite Hills projects
and created certain summaries, lists and memoranda regarding
these documents. Among the documents he created were workpapers
relating to vendors on the Granite Hill Projects whom he believed
had been paid twice for the same work. The plaintiffs seek
production of these workpapers and testimony from Clifford
concerning the workpapers, arguing that both are necessary to
prepare for cross-examination of Clifford. Plaintiffs also argue
that Clifford waived the work product privilege by reviewing the
documents to refresh his recollection immediately before his
deposition. The defendants, however, argue that the workpapers
are protected as work product under Federal Rule of Civil
Procedure 26(b)(3).
The court must determine, based on the deposition testimony
provided, (i) whether the documents and testimony in dispute are
10ther issues raised by this motion that are not discussed in this order were resolved by agreement. protected by the work product privilege under Federal Rule of
Civil Procedure 26(b)(3) and Hickman v. Tavlor, 329 U.S. 495
(1947), and (11) whether Clifford waived the privilege by
reviewing the documents to refresh his recollection before his
deposition. See Fed. R. Evid. 612; In re Atlantic Financial
Management Securities Litigation, 121 F.R.D. 141, 144 (D. MA
1988); Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 13 (N.D.I11.
1972) .
Clifford's testimony shows that while he initially came
across the information in the normal course of business, he
prepared the schedule of vendors allegedly paid twice at the
reguest of counsel and in preparation for litigation. (Clifford
II at 9-10, 44) . The schedule is therefore work product under
Rule 26(b)(3). Harper v. Auto Owners Insurance Co., 138 F.R.D.
655, 659 (S.D. Ind. 1991) .
Clifford's testimony does not show that he reviewed the
documents to refresh his memory before testifying. In volume I
on page 42, Clifford clearly states that he "didn't review" the
workpapers but merely identified them as his. Plaintiffs point
to page 24 of volume II when Clifford answered Attorney Topman's
guestion, "[w]hen was the last time you refreshed your
recollection with these documents," Clifford answered that he had
3 looked at them "before the last deposition". However, reading
this quotation in context, it becomes clear that the documents to
which Clifford refers on page 24 are workpapers dealing with the
escrow account, an entirely different issue and one which was
resolved by the parties without the court's intervention.
Finally, Clifford testified that one of defendants' attorneys
sent him some of the workpapers via fax prior to the deposition,
asking him to explain them. (Clifford Vol II at 5 and 90.)
Nowhere in the deposition, however, does Clifford state that he
reviewed the documents for the purpose of preparing for his
deposition. Thus, Clifford did not waive his work product
privilege by reviewing the documents for the purpose of
refreshing his recollection before his deposition.
Plaintiffs also ask the court to compel the production of
certain documents and testimony by defendants' expert witness,
Brian Reynolds. The Defendants have disclosed Reynolds as one of
their testifying expert witnesses. He has also served as a
consultant on various issues upon which he will not testify. The
plaintiffs claim that the various reports and summaries Reynolds
produced for the defendants in his capacity as consultant are not
privileged under Federal Rule 26(b)(3) because he is a testifying
expert and cannot be an expert and claim the work product
4 privilege at the same time.
Testimony and documents cannot ordinarily be compelled from
a testifying expert under Rule 26(b)(4)(A) on issues relating to
that expert's work as a retained consultant under Rule
26(b) (4) (B) . Inspiration Consol. Copper Co. v. Lumbermens Mutl.
Cas. Co., 60 F.R.d. 205, 210 (S.D. N.Y. 1973); but see Elco
Indus, v. Hogg, 1988 WL 20055, *3 (N.D. 111. 1988) (documents
discoverable where no clear delineation between expert's role as
consultant and testifying expert). As the court in Inspiration
Consol. Copper noted, an expert can "wear two hats" and can
advise on one subject and give testimony on another. JCd. Thus,
information provided to the defendants by Reynolds in his
capacity as a consultant under the direction of counsel and in
anticipation of litigation will gualify as work product material
under Federal Rule of Civil Procedure 26(b) (3) unless the
material pertains to the subject area about which he will
testify. See Beverage Mktq. Corp v. Qqlivv & Mather Direct
Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y. 1983).
Plaintiffs offer no other reason why this material should be made
discoverable. Accordingly, the court will not compel the
production of testimony and documents that pertain only to
subjects about which Reynolds will not testify.
5 2. Plaintiffs' Motion to Compel Answers to Interrogatories and Production of Documents
Plaintiffs seek to compel the defendants to disclose
documents which postdate the commencement of the litigation.
Defendants argue that plaintiffs have failed to demonstrate that
the reguested documents are "reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
They also argue that production of the documents would be "unduly
burdensome."
The fact that the documents at issue were prepared after the
commencement of the litigation is not sufficient to overcome
plaintiffs' claim that the documents will lead to evidence which
is relevant to the amount of their damages. Nor has a showing
been made that production of the documents would be unduly
burdensome. Although the defendants may have valid work product
or other objections to the production of specific post-litigation
documents, the court expects the parties to resolve such concerns
by agreement.
3. Defendant's Motion to Conclude Depositions
Defendant, Boston Five, moves for leave to conclude the
depositions of plaintiffs, Daniel R. Titcomb and Robert J. Lloyd,
Esguire and to take the deposition of the bookkeeper of
6 Cleveland, Waters & Bass, P.A.
On January 5 and 6, 1993, the Bank deposed Attorney Lloyd,
who agreed to produce Cleveland, Waters & Bass' accounts
receivable documents. The defendants did not receive these
documents until April 15, 1993, and state that significant
guestions arose from their review of the documents. While the
discovery deadline is an important tool, in this case, allowing
these depositions would not impose an undue burden on either
party. Accordingly, this motion is granted.
4. Defendants' Motion to Compel Documents
The defendants seek production of documents, some of which
were reguested in Defendants' First Reguest for Production of
Documents and some of which plaintiffs agreed to produce in their
answers to Defendants' First Set of Interrogatories. The
plaintiffs objected by claiming that they have produced all of
the reguested documents that are in their possession.
Because plaintiffs have produced all responsive documents in
their custody and control. Defendants' Motion to Compel Documents
is denied.
7 CONCLUSION
For the reasons stated above. Plaintiffs' Motion to Compel
the Production of Documents and Answers to Questions Propounded
at Deposition (document no. 7 6) and Defendants' Motion to Compel
Production of Documents (document no. 7 9) are denied, and
Plaintiffs' Motion to Compel Answers to Interrogatories and
Production of Documents (document no. 97) and Defendant Boston
Five Cents Savings Bank, FSB's Motion for Leave to Conclude
Depositions (document no. 98) are granted.
SO ORDERED.
Paul Barbadoro United States District Judge May 24, 1993
cc: James R. Muirhead, Esg. Jamie N. Hage, Esg. Robert L. Ketchand, Esg. Donald Elliot, Esg. Bruce Topman, Esg. Thomas H. Richard, Esg.