ORDER ON DEFENDANT QUALITY KING DISTRIBUTORS, INC.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Defendant Quality King Distributors, Inc. (“Quality King”) has moved to compel the production of documents in response to Quality King’s subpoena for production of documents allegedly relied on by three non-party expert witnesses retained by Plaintiffs for purposes of producing their respective expert reports. Defendants assert that under Fed.R.Civ.P. 26(a)(2)(B) & (b)(4)(A), they are entitled to access all documents received and reviewed or created by the testifying expert witnesses in connection with the preparation of their reports. Plaintiffs respond that certain of the requested documents are protected by the work product doctrine, and/or that they are outside the scope of permissible discovery as the experts did not rely on the materials in forming their opinions. For the following reasons, Quality King’s motion to compel is DENIED.
This case is a trademark infringement, dilution, and unfair trade practice action, the specific facts of which are not relevant to the matter under consideration here. The instant discovery dispute takes place against the backdrop of a larger debate concerning the correct interpretation of the 1993 amendments to Fed.R.Civ.P. 26, and the associated commentary provided by the Advisory Committee. And so we begin with a review of the relevant rules:
26(a)(2)(B) states
“... [required disclosure of experts] with respect to a witness who is retained or specially employed to provide expert testimony in the case ... [shall] be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness informing the opinions ...” (Emphasis supplied.)
26(b)(3) substantially codifies the doctrine of work product protection announced in Hickman v. Taylor,329 U.S. 495 ,67 S.Ct. 385 ,91 L.Ed. 451 (1947), and it commands that
“subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision*8 (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.... when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis supplied.)
26(b)(4)(A) provides:
“A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.”1
The 1993 Advisory Committee’s Note states, with regard to 26(a)(2)(B),
“[this paragraph] requires that persons retained or specially employed to provide expert testimony ... must prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefore. The information disclosed under the former rule in answering interrogatories about the ‘substance’ of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness____[the Rule] does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, ... this assistance may be needed.... The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. 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 ivhen such persons are testifying or being deposed.” (Emphasis supplied.)
With regard to 26(b)(4)(A), the 1993 Advisory Committee’s Note states:
“... 4(A) is revised to provide that experts who are expected to be witnesses will be subject to deposition prior to trial, ... The requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic experts may, moreover, eliminate the need for some such depositions or at least reduce the length of depositions.”
Courts are divided on the issue of whether and to what degree the work product privilege applies to discovery material presented to an expert witness who will testify at trial. Some courts and at least one commentator have held that the requirements of 26(a)(2) “trump” any assertion of work product or privilege. See B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of N.Y., Inc.,
Other courts and commentators have held, however, that Rule 26(a)(2) does not annul the attorney work product privilege. See Magee v. Paul Revere Life Ins. Co.,
Court’s favoring the “bright line” approach of the Kam Court have required disclosure of all documents, including core attorney work product, considered by an expert in forming her opinion. These courts have emphasized the importance of ensuring that the confidence lodged by the trier of fact in the representation that an expert’s opinion has been independently derived is well placed. In other words, the fact finder, in assigning the proper weight to a given expert’s testimony, should be aware of the extent of the influence, if any, counsel has had in shaping or coloring the opinion of the expert. See Karn,
The risk that an expert’s opinion has been influenced by counsel, and that the fact finder could be misled as to the source of an expert’s opinion, is mitigated, however, by the fact that the jury hears the testimony in the context of the trial as a whole where the expert’s opinion is subject to examination and challenge by other experts in the field, and is compared to the normative understanding of the specific field of inquiry. See Magee,
The interest in facilitating effective cross-examination directed to exposing the extent of counsel’s influence on an expert’s opinion is a related concern cited by courts favoring the bright line approach. See Karn,
Finally, courts in favor of full disclosure have construed the language of 26(a)(2) and the 1993 Advisory Committee’s commentary on the rule’s amendments to favor total disclosure of all materials considered and relied on, including attorney opinion. See Karn,
The most reasonable reading of the 1993 Advisory Committee Note is that the drafters intended to put to rest any dispute concerning expert disclosures and to clarify that disclosure of factual materials-“data and other information ... and any exhibits or charts that summarize or support the expert’s opinion” — whether considered or relied on by an expert, was required under the rule. See All West Pet Supply,
Based on this Court’s review of the relevant cases, the text of the rule and the accompanying Advisory Committee comment, this Court concludes that the required disclosure under 26(a)(2)(B) & (b)(4)(A) does not include core attorney work product considered by the expert. The persuasive reasoning-in Haworth and the additional considerations set forth in Moore’s, supra, p. 5, particularly demonstrate the propriety of this reading of the rule. It is this Court’s opinion that through continued protection of core attorney work product, communication between
Now we turn to the question of which of the withheld disclosures, if any, must be produced to the Defendants. Plaintiffs submitted Privilege Logs to the Court describing the documents withheld from production by their experts, Craig L. Moore, Ph.D., Nancy Flinn, and Neil E. Wallach, respectively. In their Objections to Subpoena, Ms. Flinn and Mr. Wallach represent that they “did not review nor rely upon any nonprivileged documents” (Plaintiffs’ Memo, at 5), and Plaintiffs now represent that “neither Flinn nor Wallach relied upon any privileged documents in preparing their expert reports, or any other documents ...” (Id.) Mr. Moore has disclosed some of the documents he reviewed.
This Court has reviewed the Privilege Logs of Mr. Moore, Ms. Flinn, and Mr. Wallach and finds that Plaintiffs have met their burden of establishing that each of the described documents are work product protected, and therefore not subject to disclosure under 26(a)(2)(B) and 26(b)(4)(A). The materials are documentary and were prepared for trial purposes by Plaintiffs’ attorneys and experts. See Fed.R.Civ.P. 26(b)(3). Further, with the exception of letters regarding retainer and fees and a fax sent from Ms. Flinn to Attorney Pellegrini on January 22, 1999, the materials considered by Ms. Flinn and Mr. Wallach concern exclusively draft versions of the expert reports. Counsel are not precluded from assisting experts in preparing the expert reports. See 1993 Advisory Committee’s Note. The Court notes that while the January 22 fax itself need not be disclosed, if Ms. Flinn did consider the articles referred to in the fax, those factual materials would need to be disclosed.
Accordingly, Defendants’ Motion to Compel these documents is hereby DENIED.
SO ORDERED.
Notes
. 26(b)(4)(B) concerns discovery of "facts known or opinions held” by an expert "who is not expected to be called as a witness at trial.” Because the Plaintiffs’ experts are expected to testify, (Plaintiffs’ Memo, in Opp. at 3; Defs.’ Memo in Support at 3), the rule has no relevance here.
. The All West Pet Supply Court agreed with the Court in Bogosian that the value of a cross examination that does reveal that the expert's opinion may have been derived from the attorney's theory does not outweigh the strong interest in protecting core work product. See