128 Fed. Cl. 584
Fed. Cl.2016Background
- Plaintiffs (DaVita and dialysis-center owners) produced an expert report and rebuttal by damages expert Laureen Ryan; she listed the data sources and exhibits underpinning her opinions and those underlying data had been produced to the Government.
- Defendant moved to compel production of 86 documents on Ryan’s privilege log (later narrowed to 58) described as work papers: scripts, spreadsheets, graphs, presentations, and invoices/redacted billing details provided to or created for counsel.
- Plaintiffs withheld those materials as protected under the work-product doctrine and the expert-communication rules (RCFC 26(b)(4)(B)–(C)), asserting protection for draft reports and attorney–expert communications, while disclosing the facts/data and compensation amounts required by the rules.
- The Court ordered a more detailed privilege log, received it, heard argument, and addressed whether the withheld materials were discoverable under RCFC 26(b)(3), RCFC 26(b)(4)(B)–(C), and RCFC 26(a)(2)(B).
- The Court concluded that (1) Ryan’s draft materials and communications with counsel reflecting preliminary analyses and report strategy are protected under RCFC 26(b)(4)(B)–(C), (2) the factual data considered by Ryan were already disclosed in her report and productions, and (3) redacted invoice details revealing attorney–expert communications are privileged; the motion to compel was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are expert work papers/communications to counsel discoverable? | Ryan’s work papers and communications with counsel are protected under RCFC 26(b)(4)(C) as attorney–expert communications (including preliminary opinions). | General attorney work-product does not extend to testifying expert materials; documents are factual/data considered by the expert and must be produced under RCFC 26(a)(2)(B). | Denied — communications and preliminary analyses to counsel are protected under RCFC 26(b)(4)(C); drafts protected under RCFC 26(b)(4)(B). |
| Do documents summarizing or analyzing produced data count as "facts or data" that must be produced? | The expert’s summaries/analyses reflect counsel’s mental impressions and collaborative presentation choices, not raw facts; underlying facts/data were disclosed. | The spreadsheets/analyses are the facts or data considered by the expert and thus discoverable under RCFC 26(a)(2)(B)(ii). | Denied — the rule requires production of facts/data, which were disclosed; further analysis/preliminary opinions remain protected. |
| Are draft expert reports and materials prepared for inclusion in drafts discoverable? | Drafts of reports and materials prepared for drafts are protected by RCFC 26(b)(4)(B). | Draft materials should be disclosed because they inform the expert’s final opinions. | Denied — drafts and materials prepared for drafts are work product and protected. |
| Are line-item invoice descriptions revealing tasks and communications discoverable despite disclosure of compensation? | Detailed billing entries that reveal privileged communications or strategy may be withheld; only amount and general compensation disclosures are required. | Because the entries relate to compensated tasks, they are not work product and must be produced. | Denied — disclosed compensation and engagement documents suffice; detailed, communicative billing entries may be withheld as privileged. |
Key Cases Cited
- United States v. Nobles, 422 U.S. 225 (work-product doctrine shelters attorney mental processes)
- Hickman v. Taylor, 329 U.S. 495 (foundational statement of work-product protection)
- In re EchoStar Commc’ns Corp., 448 F.3d 1294 (Fed. Cir.) (discussion of substantial-need exception and work-product scope)
- Republic of Ecuador v. Hinchee, 741 F.3d 1185 (11th Cir.) (expert-communication protection under amended Rule 26)
- Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir.) (recognizing limited work-product protection for communications with testifying experts under Rule 26 amendments)
- DaVita HealthCare Partners v. United States, 125 Fed. Cl. 394 (Fed. Cl. 2016) (prior production of claim-level data in this litigation establishing what was produced)
- Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir.) (billing records may be privileged when they reveal litigation strategy)