288 F.R.D. 222
D.D.C.2012Background
- This is a U.S. District Court case under the False Claims Act against Toyobo and related entities over Zylon body armor purported defects.
- The United States moves to compel production of documents and a deposition from James W. Murray, Toyobo’s consulting expert.
- Murray and his company Shots-M-Stuff Testing allegedly procured ballistic vests later tested by Toyobo’s expert, Price.
- Pl. alleges Murray’s handling of vests (acquisition, storage, care, pre-testing, selection) is relevant to Price’s NIJ-based testing results.
- Toyobo asserts Murray’s work enjoys consulting expert immunity and work-product protection, shielding these materials from discovery.
- The court held a hearing on December 4, 2012 and addresses whether discovery is permitted under Rule 26 and Rule 26(b)(4) exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Murray materials are shielded as work product | Westrick argues protection applies to Murray’s materials | Toyobo asserts work-product protection bars discovery | Protection generally applies; some factual storage/care information may be discoverable |
| Whether there was a waiver of work product protection | Murray’s disclosure to Price could waive protection | No waiver; Price did not receive Murray’s materials | No waiver found; no showing Murray shared work product with Price |
| Whether substantial need allows discovery of Murray’s storage/care facts | Storage/care info is essential for assessing Price’s results | Factual storage details are protected | Storage/care info is discoverable; facts may be compelled via sworn declaration |
| Whether Rule 26(b)(4) consulting expert immunity prevents deposition | Exceptional circumstances exist due to collaboration-like issues; need to impeach Price | No collaboration; immunity shields non-testifying expert | No deposition based on exceptional circumstances for Murray; but storage facts allowed via exception |
| Whether exceptional circumstances permit deposition of non-testifying Murray | Impracticable to obtain facts about storage/care elsewhere | Lack of collaboration; no exceptions warranted | Exceptional circumstances found for storage/care facts; require sworn declaration from Murray |
Key Cases Cited
- In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) (work product protection balance and discovery scope)
- Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002) (exceptions to consulting expert immunity; collaboration context)