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Fed. R. Civ. P. 26(a)(2)(B) only applies to material disclosed to and considered by an expert witness for purposes of his or her expert report and testimony - that is, information the expert receives or considers in his or her capacity as a testifying expert witness. Commonly in litigation involving complex and specialized areas - such as computer forensics - a witness will perform dual roles, one as testifying expert, and one as consulting expert. Information exclusively considered by such an expert in his or her capacity as consulting expert does not fall under Rule 26(a)(2)(B). A court should only give force to this differentiation of roles if it is convinced that the information considered for consulting expert purposes was not also considered pursuant to the expert's testifying function. The normal discovery and privilege rules govern when materials considered by an expert exclusively in that individual's capacity as a consulting specialist must be disclosed to an opposing party.
The subject Order (“February 7 Order”) issued in the context of a dispute around the deposition of Stephen Wolfe, an employee of Huron Consulting Group, a computer forensic services firm relied on by Defendants for both testifying and consultative expert work. Wolfe testified that, at Thermax's direction, he had performed two distinct tasks. The first was to produce an expert report regarding whether an array of Purolite information identified by Purolite's expert witness Lawrence Golden ("the Golden Exhibits") was located on a discrete set of data storage devices ("the Thermax devices"), after performing all necessary searches of images of the devices. This set of devices did not include the India or Michigan servers. The second task was to conduct electronic searches of images of Thermax's India and Michigan servers for evidence of Purolite files therein (which, in accordance with the May 23 Order, already should have been disclosed to Plaintiffs and purged). The two tasks were different in several ways. Of primary importance for present purposes, each task involved searches of different devices, with the searches involved in the former task providing the exclusive basis of Wolfe's expert report, and the searches of the India and Michigan servers not informing his report in any respect. In other words, Wolfe performed the former task in his capacity as a testifying expert, and performed the latter task in his capacity as a consulting expert. Wolfe further testified that after completing the review of only 5% of the hits yielded by the search of the India and Michigan servers for evidence of Purolite files, he was instructed to stop the job by Thermax's counsel. Following Wolfe's deposition, counsel for Plaintiffs and Defendants exchanged a series of letters, contesting whether Thermax was obligated to turn over copies of the India and Michigan servers to Purolite. Ultimately, counsel were unable to resolve the point, and they appealed to the Magistrate Judge for a Court-imposed resolution. To that end, after a hearing on the matter, the Magistrate Judge issued the February 7 Order requiring them to disclose forensically sound images of certain data storage devices to Plaintiffs' counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold.
Should the portion of the February 7 Order compelling Thermax to produce the entire India and Michigan servers for Plaintiffs’ review without regard for privilege be overruled?
Wolfe repeatedly stated under oath that the India and Michigan servers were outside the scope of his expert report, and that he did not consider them in his testifying expert role. Instead, his expert report exclusively concerned the contents of other devices. Because the information on the India and Michigan servers was not disclosed to or considered by Wolfe for purposes of his expert report, Rule 26(a)(2)(B) does not apply to the materials on those servers, and does not provide a legal basis for requiring their disclosure to Purolite. Further, when privileged communications or work product materials are voluntarily disclosed to a third party, the privilege is waived. An exception to this rule exists for disclosures to third parties which are necessary for the client to obtain adequately informed legal advice. Under this exception, Thermax has not waived its privilege or work product protections in the India and Michigan server files disclosed to Wolfe. When searching these files, Wolfe was functioning in his capacity as "a non-testifying expert, retained by the lawyer to assist the lawyer in preparing the clients's case." Thermax did not waive any protections it might have in the India and Michigan servers by disclosing them to Wolfe for consultative expert assistance in this litigation.