Inline Plastics Corp. v. Lacerta Group, Inc. (D. Mass. 18-cv-11631).

Judge Hillman denied Lacerta’s motion to compel notes taken by one of Inline Plastics’ expert.  Lacerta sought eleven pages of notes taken by Inline’s damages expert during conversations with Inline employees, another Inline expert, and Inline’s counsel in connection with the preparation of his report.  Inline’s in-house or outside counsel took part in each of these conversations, and the conversations took place in connection with his preparation to testify, and were not produced in response to Lacerta’s subpoena. 

When Lacerta discovered the existence of the notes during the deposition of the expert, Inline produced a redacted set of the notes, contending the redactions were exempt  as expert or attorney thought process, analysis, opinions or commentary.  Judge Hillman noted that the rules concerning expert discovery were amended to protect expert-attorney communications, with the exception of communications related to the expert’s compensation, the facts and data provided by the attorney and relied upon in forming the expert’s opinions, and assumptions provided by the attorney and relied upon by the expert. 

The 2010 changes to the rules did not provide for work product protection for communications between a party’s experts, but where an attorney is involved, work product protection will apply to anything not falling within one of the exceptions, under which the requested subject matter does not fall.  Such subject matter can still be obtained in the limited circumstance where the requesting party has substantial need for the discovery and cannot obtain it in some other way without substantial hardship, but Lacerta made no such argument.  Accordingly, Lacerta’s motion to compel was denied.

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