Neal v. M.W. Sewall & Co.

;. .. ., .- ., . , , .-. -- - , .. a . - i

STATE OF MAINE CUMBERLAND, ss. . , .. . :.. . . ,. a,,. : .* - ,.. :, -.;. ., .j u r , .+ ,, , i:; ... -- .. ; .,. n -- : .-. . .&,- ,; SUPERIOR COURT ?- : - CIVIL ACTION / Docket Nc. CV-04-551 ;' ..- -- ,:!,hi "':.;; ,ii I I: 1 2 ANDREW NEAL,

Plaintiff,

v. ORDER

Tv";.W. SElA4V'ALL& CO., et al., Defendants.

Before the court is a discovery dispute involving certain materials provided by plaintiff's attorney to his expert. Plaintiff claims the materials are work product. Although both parties were invited at a discovery conference on June 7 to submit authority supporting their positions, if they wished to do so, neither counsel has taken the opportunity to do so.

In the court's view, a party seehng to sheld material provided to a testifying expert is unlikelv to prevail. Although Boccaleri v. Maine Medical Center: 534 A.2d 671 (Me. 1987), is not controlling here1, the Law Court in that case stressed the potential importance of materiai that could potenuaily be used in cross-examining the opposing side's expert. 534 A.2d at 673. Morecver, on the precise issues involved in *is case, the

- and Miller treatise favors the view that if communications from the attcrney Wright

may have influenced the expert's opinion, tlus could be critical in assessing the credibility of the expert. See 8 C. Wright, A. Miller and R. IvIarcus, Federal Practice and Procedure: Civil 2d § 2030 (1994) at 439 n.16. Moreover, since the amendment to Federal Rule 26 in 1993, both the federal Advisory Committee note and the Wright and Miller treatise take the view that even if materials would otherwise be privileged, they

In Boccaleri the documents a t issue were documents provided by the expert to the attorney and therefore the work product privilege did not apply.

are discoverable once they have been provided to a testifying expert and that this is true even If the materials are not relied upon hy the expert. Advisory Comxittee YJnte, 134 F.R.D. at 634; 8 C. Wright, A. Miller and R. Marcus, Federal Practice and Procedure:

Civi! 2d 5 2G31.1 at 441-42 and n.10. Indeed, Wright and Miller states that "------' L U L L ~ L ~ ~ ~

should now expect that any written or tangible data provided to testifying experts tviii have to be disclosed." Id.at 442.

Maine has not adopted the 1993 Federal amendment to Rule 26, but the court m,

vietvs that amendment as procedural rather than substantive. ~ h u s while , Maine does

not require affirmative disciosure as cailed for in Fed. I(.Civ.P. 26(a)(2), the court

doubts that there is any material difference between ~ v h a is t discoverable under Maine

and Federal law.

This does not entirely rule out the possibility that the specific materials at issue in t h s case might still be entitled to work product privilege. If counsel for plaintiff wishes to withhold these materials, he shall provide copies of any withheld materials to the

colirt for in camera review, alnno a withLa c ~ p y sf the expert's report and d e '6's i ~ ~ ~ ~ ~ - n uLLwLL-

Such a submission shall be made in 10 days. Both counsel shall then be prepared to appear for a short hearing so that the court can, without disclosing the contents of the documents, determine the relevance and importance of the withheld rrlaterials to the case and whether they should be discoverable.

The entry shall be:

Discovery order issued. The clerk is directed to incorporate this order in the docket by reference present to Rule 79(a). Dated: June 16,2005

df??-;,.-L

Thomas D. Warren Justice, Superior Court

THOMAS YARJERISON, ESQ. 415 CONGRESS STREET I)O BOX 4600 PORTLAND, ME 04112

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