WPI V. Meritor CV-97-478-M 09/13/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
WPI Termiflex, Inc., Plaintiff
v. Civil No. 97-478-M
Meritor Automotive, Inc., Defendant
O R D E R
WPI Termiflex, Inc. ("Termiflex") brings this diversity
action against Meritor Automotive, Inc. ("Meritor"), seeking
damages for breach of contract and breach of the implied covenant
of good faith and fair dealing. It claims that Meritor's
predecessor in interest (Rockwell International Corporation)
breached a contract to purchase customized, handheld computers
developed by Termiflex.
During the course of discovery, Termiflex served Meritor
with a subpoena duces tecum seeking, among other things,
testimony concerning "environmental testing of the Data System
Project." In response, Meritor offered Gary Ford, its Director
of Electronics, as its Rule 30(b) (6) designee to testify
regarding that category of information. Importantly, however,
Meritor disclosed that it expected that Mr. Ford might also offer "opinion testimony in regard to certain damages issues." See
Heritor's memorandum (document no. 18) at 2. Accordingly, Mr.
Ford was deposed in his capacity as both a Rule 30(b)(6) witness
with regard to environmental testing and as an expert witness
with regard to damages.
In preparing for his deposition. Ford received and reviewed
all documents produced in this matter, which counsel for Meritor
assembled according to their bates system numbers. Meritor says
that to facilitate Ford's review, counsel provided Ford with a
document index. That index also contained short excerpts from
some or all of the documents counsel considered relevant to
Heritor's defenses and counterclaims. That index is now the
subject of dispute. Termiflex wants it and Meritor claims it is
privileged (the attorney-client privilege and/or the work-product
doctrine) and not subject to discovery.
The dispute presents an unusual situation in which New
Hampshire's attorney-client privilege is arguably at odds with
federal rules of discovery. Heritor's discovery obligations are
governed by the Federal Rules of Civil Procedure. The extent to
which the index is privileged (and arguably shielded from
2 discovery), however, is governed by New Hampshire law. See Fed.
R. Evid. 501.
Discussion
At the outset, it is worth noting that the bases for
Termiflex's claim to the document index is not entirely clear.
Termiflex seems to claim that the index is discoverable under
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, insofar
as Termiflex asserts that the index was provided to Meritor's
expert witness in anticipation of his deposition. See
Termiflex's reply memorandum (document no. 20) at 2. See
generally Fed. R. Civ. P. 26(a) (2) (setting forth the rules
governing the disclosure of expert reports and all "data or other
information considered by the witness in forming the [expert]
opinions") (emphasis supplied).
It also bears noting that this case presents a fairly unigue
situation in which one person, Mr. Ford, appeared at his
deposition in two distinct capacities: first, as Meritor's
corporate designee under Rule 30(b) (6), and second, as Meritor's
expert witness on damages. Unfortunately, the record is unclear
as to how, or the extent to which, Mr. Ford "considered" or
relied upon the index in preparing for his deposition. Perhaps
3 overstating the record evidence a bit, Termiflex asserts that
Ford relied, at least in part, upon that index in forming his
expert opinions on damages (thus, implicitly invoking the
provisions of Rule 26(b)). See Termiflex's memorandum (document
no. 15) at 2 (referencing pages 27-30 and 143-44 of Ford
deposition). Ford, however, is more circumspect, saying only
that he used the index to help him locate documents concerning
environmental testing and suggesting that the index provided no
assistance to him in forming his expert opinions on damages. See
Ford deposition at 30. See also Affidavit of Gary Ford (attached
to document no. 22) (testifying that he used the index solely as
a means by which to locate documents; that he acguired his
understanding of matters at issue in this case solely based upon
his review of the documents themselves, and not the index; and
that he never retained a copy of the index).
Insofar as Mr. Ford may have been provided with (or
"considered") the disputed index only to assist him in preparing
for his testimony as Heritor's corporate representative (and not
as an expert witness on damages), the provisions of Federal Rule
of Civil Procedure 26(a) (2) (B) would seem inapplicable.
Nevertheless, the court need not resolve that factual dispute
because even if Rule 26 does apply to the parties' current
4 discovery dispute, the court concludes that, under the unique
circumstances presented in this case, it does not require Meritor
to disclose the disputed document.1
At its core, the disputed document is simply an index of all
written materials produced durinq discovery. Termiflex concedes
that it has copies of all such documents and has likely prepared
a substantially similar index of its own. As to some of the
documents appearinq on the disputed index, counsel for Meritor
apparently excerpted portions which they believed relevant to
Meritor's claims and defenses and included those excerpts in the
index. Termiflex does not dispute that characterization:
Simply put, the index is a summary of documents produced durinq discovery by both Meritor and Termiflex with selected excerpts of certain documents considered relevant to Meritor's counterclaims and defenses.
1 There is considerable debate as to whether the provisions of Rule 26, as amended in 1993, require the disclosure of privileqed materials provided to an expert witness in preparation for his or her testimony. Pointinq to the advisory note to Rule 26(a)(2)(B), a number of courts have concluded that disclosure of even privileqed materials is required. See, e.g., B.C.F. Oil Refining, Inc. v. Consolidated Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997). Other courts, however, have reasoned that the amended rule does not abroqate the work product or attorney client privileqes. See, e.g.. The Nexxus Products Co. v. CVS New York. Inc.. ___ F.R.D. , 1999 WL 498055 (D. Mass. June 22, 1999).
5 Termiflex's memorandum at 6. Thus, it would appear that
Termiflex seeks the index exclusively to: (1) learn which
documents counsel for Meritor believed were important to
Heritor's claims and defenses in this action; and (2) review
whatever editorial comments counsel may have made with regard to
some of those documents. Meritor asserts that all such
information is protected by both the work product doctrine and
the attorney-client privilege. The court need only address the
latter argument.
In response to Meritor's assertion of the attorney-client
privilege, Termiflex says that Mr.
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WPI V. Meritor CV-97-478-M 09/13/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
WPI Termiflex, Inc., Plaintiff
v. Civil No. 97-478-M
Meritor Automotive, Inc., Defendant
O R D E R
WPI Termiflex, Inc. ("Termiflex") brings this diversity
action against Meritor Automotive, Inc. ("Meritor"), seeking
damages for breach of contract and breach of the implied covenant
of good faith and fair dealing. It claims that Meritor's
predecessor in interest (Rockwell International Corporation)
breached a contract to purchase customized, handheld computers
developed by Termiflex.
During the course of discovery, Termiflex served Meritor
with a subpoena duces tecum seeking, among other things,
testimony concerning "environmental testing of the Data System
Project." In response, Meritor offered Gary Ford, its Director
of Electronics, as its Rule 30(b) (6) designee to testify
regarding that category of information. Importantly, however,
Meritor disclosed that it expected that Mr. Ford might also offer "opinion testimony in regard to certain damages issues." See
Heritor's memorandum (document no. 18) at 2. Accordingly, Mr.
Ford was deposed in his capacity as both a Rule 30(b)(6) witness
with regard to environmental testing and as an expert witness
with regard to damages.
In preparing for his deposition. Ford received and reviewed
all documents produced in this matter, which counsel for Meritor
assembled according to their bates system numbers. Meritor says
that to facilitate Ford's review, counsel provided Ford with a
document index. That index also contained short excerpts from
some or all of the documents counsel considered relevant to
Heritor's defenses and counterclaims. That index is now the
subject of dispute. Termiflex wants it and Meritor claims it is
privileged (the attorney-client privilege and/or the work-product
doctrine) and not subject to discovery.
The dispute presents an unusual situation in which New
Hampshire's attorney-client privilege is arguably at odds with
federal rules of discovery. Heritor's discovery obligations are
governed by the Federal Rules of Civil Procedure. The extent to
which the index is privileged (and arguably shielded from
2 discovery), however, is governed by New Hampshire law. See Fed.
R. Evid. 501.
Discussion
At the outset, it is worth noting that the bases for
Termiflex's claim to the document index is not entirely clear.
Termiflex seems to claim that the index is discoverable under
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, insofar
as Termiflex asserts that the index was provided to Meritor's
expert witness in anticipation of his deposition. See
Termiflex's reply memorandum (document no. 20) at 2. See
generally Fed. R. Civ. P. 26(a) (2) (setting forth the rules
governing the disclosure of expert reports and all "data or other
information considered by the witness in forming the [expert]
opinions") (emphasis supplied).
It also bears noting that this case presents a fairly unigue
situation in which one person, Mr. Ford, appeared at his
deposition in two distinct capacities: first, as Meritor's
corporate designee under Rule 30(b) (6), and second, as Meritor's
expert witness on damages. Unfortunately, the record is unclear
as to how, or the extent to which, Mr. Ford "considered" or
relied upon the index in preparing for his deposition. Perhaps
3 overstating the record evidence a bit, Termiflex asserts that
Ford relied, at least in part, upon that index in forming his
expert opinions on damages (thus, implicitly invoking the
provisions of Rule 26(b)). See Termiflex's memorandum (document
no. 15) at 2 (referencing pages 27-30 and 143-44 of Ford
deposition). Ford, however, is more circumspect, saying only
that he used the index to help him locate documents concerning
environmental testing and suggesting that the index provided no
assistance to him in forming his expert opinions on damages. See
Ford deposition at 30. See also Affidavit of Gary Ford (attached
to document no. 22) (testifying that he used the index solely as
a means by which to locate documents; that he acguired his
understanding of matters at issue in this case solely based upon
his review of the documents themselves, and not the index; and
that he never retained a copy of the index).
Insofar as Mr. Ford may have been provided with (or
"considered") the disputed index only to assist him in preparing
for his testimony as Heritor's corporate representative (and not
as an expert witness on damages), the provisions of Federal Rule
of Civil Procedure 26(a) (2) (B) would seem inapplicable.
Nevertheless, the court need not resolve that factual dispute
because even if Rule 26 does apply to the parties' current
4 discovery dispute, the court concludes that, under the unique
circumstances presented in this case, it does not require Meritor
to disclose the disputed document.1
At its core, the disputed document is simply an index of all
written materials produced durinq discovery. Termiflex concedes
that it has copies of all such documents and has likely prepared
a substantially similar index of its own. As to some of the
documents appearinq on the disputed index, counsel for Meritor
apparently excerpted portions which they believed relevant to
Meritor's claims and defenses and included those excerpts in the
index. Termiflex does not dispute that characterization:
Simply put, the index is a summary of documents produced durinq discovery by both Meritor and Termiflex with selected excerpts of certain documents considered relevant to Meritor's counterclaims and defenses.
1 There is considerable debate as to whether the provisions of Rule 26, as amended in 1993, require the disclosure of privileqed materials provided to an expert witness in preparation for his or her testimony. Pointinq to the advisory note to Rule 26(a)(2)(B), a number of courts have concluded that disclosure of even privileqed materials is required. See, e.g., B.C.F. Oil Refining, Inc. v. Consolidated Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997). Other courts, however, have reasoned that the amended rule does not abroqate the work product or attorney client privileqes. See, e.g.. The Nexxus Products Co. v. CVS New York. Inc.. ___ F.R.D. , 1999 WL 498055 (D. Mass. June 22, 1999).
5 Termiflex's memorandum at 6. Thus, it would appear that
Termiflex seeks the index exclusively to: (1) learn which
documents counsel for Meritor believed were important to
Heritor's claims and defenses in this action; and (2) review
whatever editorial comments counsel may have made with regard to
some of those documents. Meritor asserts that all such
information is protected by both the work product doctrine and
the attorney-client privilege. The court need only address the
latter argument.
In response to Meritor's assertion of the attorney-client
privilege, Termiflex says that Mr. Ford "is not a client or
representative of a client of Meritor because he is not a member
of the 'control group.'" Termiflex's memorandum at 6.
Accordingly, Termiflex asserts that any materials provided to him
are necessarily non-privileged. Moreover, Termiflex contends
that even if the index is arguably privileged, that privilege was
waived when Meritor shared it with Mr. Ford. Id., at 3-4. The
court disagrees.
As the Rule 30(b)(6) designee, Mr. Ford appeared and
testified as the corporal embodiment of Meritor. Thus, he was
necessarily "the client" and the attorney-client privilege
6 attaches to any information counsel provided to him for the
purposes of providing legal opinions, legal services, or
assistance to Meritor. See N.H. R. Evid. 502(b). As the client,
Mr. Ford's membership (or non-membership) in the so-called
"control group" is immaterial. That inguiry is only relevant
when the privilege is asserted with regard to materials shared
with an agent of the client; here, as noted above, Mr. Ford was
the client, not merely one of its agents. Likewise, the
attorney-client privilege is not waived by providing him - the
client - with otherwise privileged documents which constitute
"confidential communications made for the purpose of facilitating
the rendition of professional legal services" to Meritor. See
N.H. R. Evid. 502(b)(1) ("A client has a privilege to refuse to
disclose and to prevent any other person from disclosing
confidential communications . . . between the client or his or
her representative and the client's lawyer. . ..").
Based upon the record currently before it, the court
concludes that the index generated by Meritor's counsel and
provided to Mr. Ford constitutes a "confidential communication"
and falls within the scope of New Hampshire's attorney-client
privilege. See N.H. R. Evid. 502(a)(5) and (b)(1). See also
Riddle Soring Realty Co. v. State, 107 N.H. 271, 273 (1966) .
7 And, Termiflex has failed to demonstrate that the circumstances
presented in this case warrant intrusion into that attorney-
client relationship. See, e.g., McGranahan v. Dahar, 119 N.H.
758, 764 (1979) ("The attorney-client privilege may not be
absolute when there is a compelling need for the information and
no alternate source is available."). See also State v. Eason,
133 N.H. 335, 345 (1990) (suggesting, at least in the context of
a criminal trial where constitutional issues of confrontation are
presented, that a defendant may, upon an adeguate showing of
need, pierce the attorney-client privilege and review otherwise
privileged materials in the possession of a witness).
Conclusion
This case presents a somewhat unigue situation in which "the
client" (i.e., Mr. Ford appearing as the corporal embodiment of
Meritor) gave deposition testimony as both a fact witness and an
expert witness. Thus, while the provisions of Rule 26(a) (2) (B)
would ordinarily apply (and might arguably reguire disclosure of
the privileged materials provided to Mr. Ford and upon which he
relied in forming his expert opinions), the circumstances of this
case are sufficiently unigue that the court concludes that those
provisions do not operate to annul the attorney-client privilege between defense counsel and their client, Meritor, appearing in
the person of Mr. Ford.
The index provided to Mr. Ford prior to his deposition
testimony includes: (1) a list of materials readily available to
plaintiffs; and (2) opinions and other "confidential"
communications provided to Meritor in furtherance of counsel's
provision of legal services (i.e., an implicit statement of
counsel's opinion as to which documents, or portions thereof, are
central to Meritor's claims and defenses in this proceeding).
Conseguently, the circumstances presented in this case are
distinct from those in which the attorney-client privilege is
arguably waived when otherwise privileged materials are provided
to an expert witness. Here, the privileged materials were
provided to the client itself; they were not shared with an
independent third-party hired simply to offer expert opinion
testimony.
Accordingly, the court concludes that the reguested
materials are protected from disclosure by the attorney-client
privilege. Termiflex's motion to compel (document no. 15) is
denied.
9 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 13, 1999
cc: Thomas J. Donovan, Esq. Anthony M. Feeherry, Esq. E. Tupper Kinder, Esq.