Beverage Marketing Corp. v. Ogilvy & Mather

• Decision Date: 18 February 1983
• Docket Number: No. 80 Civ. 3318 (RWS).,80 Civ. 3318 (RWS).
• Parties: BEVERAGE MARKETING CORPORATION, Plaintiff, v. OGILVY & MATHER DIRECT RESPONSE, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

563 F. Supp. 1013

BEVERAGE MARKETING CORPORATION, Plaintiff, v. OGILVY & MATHER DIRECT RESPONSE, INC., Defendant.

No. 80 Civ. 3318 (RWS).

United States District Court, S.D. New York.

February 18, 1983.

Baker, Nelson & Williams, New York City, for plaintiff by John P. Dellera, New York City, of counsel.

Davis & Gilbert, New York City, for defendant by Miles Baum, New York City, of counsel.

OPINION

SWEET, District Judge.

Plaintiff Beverage Marketing Corporation ("Marketing") has sued defendant Ogilvy & Mather Direct Response, Inc. ("Ogilvy") claiming breach of contract and malpractice allegedly committed during the performance of an agreement for direct mail marketing services. Marketing has now moved pursuant to Fed.R.Civ.P. 26(b)(4)(A)(ii) for an order compelling Ogilvy to produce a report prepared by one of Ogilvy's experts. The motion is granted.

Discovery of expert materials is governed by Fed.R.Civ.P. 26(b)(4), which reads, in relevant part:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

Both parties indicate that expert testimony will be the central focus of the trial and have retained experts. Ogilvy has previously sought, and obtained, an order compelling Marketing to produce its expert's reports. Marketing thereafter followed the procedure of Rule 26(b)(4) by first serving Ogilvy with a set of interrogatories. Ogilvy responded to an interrogatory asking for the subject matter and substance of the testimony to be offered at trial by its experts as follows:

Defendant's experts are expected to give testimony at the trial of this action concerning an analysis and evaluation of the reports and testimony of plaintiff's expert witness. They also will give testimony refuting the theories and calculations espoused by plaintiff's expert witness in support of its damage calculations and to show that there is no basis statistically or otherwise, for his conclusions.

Following the receipt of this response, Marketing served Ogilvy with a document request seeking, inter alia, reports prepared by Ogilvy's experts. Ogilvy responded by objecting to such production on the ground of attorney work-product privilege and has submitted the report for an in camera review.

As a preliminary matter, Ogilvy's claim that the expert report is protected by the work product privilege has no merit in these circumstances. Rule 26(b)(3), which governs the privilege in federal court, is expressly "subject to the provisions of subdivision (b)(4)," quoted supra. The weight of authority is to the effect that the work product rule does not apply to experts who are expected to testify. In re IBM Antitrust Litigation, 77 F.R.D. 39, 41, 42 (N.D.Cal.1977); Quadrini v. Sikorsky Aircraft Div., United Aircraft Corp., 74 F.R.D. 594, 595 n. 1 (D.Conn.1977). See also Fed.R. Civ.P. 26 advisory committee note (rejecting decisions that have sought to bring expert information within the work product doctrine as "ill-considered"); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2029 at 243 (1970).

Ogilvy's attempts to argue the contrary are unavailing. For example, Ogilvy states that the court in In re IBM Antitrust Litigation, supra, 77 F.R.D. at 42 "commented that an expert might in some circumstances be considered a consultant to an attorney and thus be covered by the work product doctrine." The court in that case was addressing the question whether the author of a report, who was not going to testify at trial, was defined as an expert, and thus subject to the provisions of Rule 26(b)(4)(B), or as a consultant, thereby being subject to the work-product privilege. There was no suggestion that he would fit both categories.

Ogilvy states that the court in Fauteck v. Montgomery Ward & Co., 91 F.R.D. 393, 399 (N.D.Ill.1980), offered to review expert material in camera to guard against the unwarranted disclosure of legal theories. The material in question Fauteck, however, was not expert reports — it was the defendant's own personnel records reformulated in computer readable form at the direction and under the supervision of the defendant's attorneys. As such, it was subject to protection as work product. Furthermore, the court ordered disclosure of the material on a reciprocal basis between the parties.

In addition, Ogilvy states that "the attorney work product privilege extends to...