District Of Delaware Orders Production Of Expert Materials Over FRCP 26(a)(2)(B), 26(b)(4)(B), And Work Product Objections
On December 11, 2017, Judge Richard Andrews of the United States District Court for the District of Delaware ordered plaintiff Ansell Healthcare Products LLC (Ansell) to produce two documents that it had exchanged with its damages expert, Mr. John Hansel, in connection with his review of an internal settlement proposal. Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC, case no. 1:15-cv-00915. The first document addresses Ansell’s settlement position with respect to a lump sum paid-up worldwide license to defendant Reckitt Benckiser LLC (Reckitt) for Ansell’s polyisoprene article patents. The second document contains analysis of the business case for Ansell’s global patent litigation against Reckitt.
Ansell made the following two arguments for why it should not be forced to produce the documents to Reckitt: First, the documents are privileged under Fed. R. Civ. P. 26(a)(2)(B) because Mr. Hansen reviewed them in his capacity as a consulting expert involved in worldwide settlement analysis, which was separate from his later work as a testifying damages expert; and second, even if the district court finds no distinction between his roles, the documents are protected from disclosure because (i) the first document is a draft of his testifying expert report (protected under Fed. R. Civ. P. 26(b)(4)(B)) and (ii) the second contains opinion work product of Ansell’s counsel.
With respect to the first argument, Judge Andrews found that Ansell failed to establish a “clear distinction” between Mr. Hansen’s roles as a consulting expert and his role as a testifying expert. Ansell presented only one engagement agreement for Mr. Hansen, and the subject matter about which he was retained to opine as a consulting expert (worldwide settlement evaluations) overlapped with the subject matter of his testifying expert work because the products and patents at issue in his damages report were also included in his settlement evaluations. Judge Andrews found that it was simply not believable that Mr. Hansen’s settlement evaluations did not inform the opinions contained in his testifying expert report on damages.
With respect to the argument that the first document was a draft expert report, Judge Andrews, after reviewing the document in camera, found that it did not appear to be a draft of Mr. Hansen’s expert report, but rather a final presentation to Ansell. Further, after reviewing the second document, Judge Andrews found that it did not contain any legal theories, but rather summarized the results of an economic model for Ansell’s litigations against Reckitt domestically and abroad, and that the document did not identify an author (much less an attorney author).
The decision illustrates the dangers of using the same expert in testifying and non-testifying roles. Parties who cannot avoid doing so should take practical steps to explicitly document each of the roles (e.g., with separate engagement agreements) and should be cautious when the subject matter of the roles overlaps, for under certain circumstances these materials could be discoverable.