Flags I v. Boston Five Cents Savings CV-90-340-B 05/24/93

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Flags I, Inc., et al

v. Civil No. 1-340-B

The Boston Five Cents Savings Bank, et al

O R D E R

This case concerns two related real estate development

projects. The Village at Granite Hills I and The Village at

Granite Hills II. Plaintiffs are various individuals and

entities that were engaged in the development of both projects.

Defendant Boston Five Cent Savings Bank ("Bank") was the

principal lender for the projects. Defendant Province Street

Corporation, a subsidiary of the Bank, was an eguity partner in

the projects with several of the plaintiffs.

In March 1990, several of the parties entered into a

Restructuring Agreement in which the Bank agreed to extend

additional credit for the projects in exchange for several

concessions from the plaintiffs. Plaintiffs' principal claim i

that the Restructuring Agreement violates the Bank anti-tying

laws,

(g) and

. Additional

claims and counterclaims arising from the financial arrangement

among the parties have also been asserted. This order addresses four discovery motions.

1. Plaintiffs' Motion to Compel Production of Documents and Answers to Questions Propounded at Depositions1

The Plaintiffs deposed defendants' witness, John Clifford on

December 3, 1991 and February 18, 1992. Clifford was employed as

an internal auditor in the Bank's asset management department

until April 1991. Clifford testified that he had reviewed

certain business documents relating to the Granite Hills projects

and created certain summaries, lists and memoranda regarding

these documents. Among the documents he created were workpapers

relating to vendors on the Granite Hill Projects whom he believed

had been paid twice for the same work. The plaintiffs seek

production of these workpapers and testimony from Clifford

concerning the workpapers, arguing that both are necessary to

prepare for cross-examination of Clifford. Plaintiffs also argue

that Clifford waived the work product privilege by reviewing the

documents to refresh his recollection immediately before his

deposition. The defendants, however, argue that the workpapers

are protected as work product under Federal Rule of Civil

Procedure 26(b)(3).

The court must determine, based on the deposition testimony

provided, (i) whether the documents and testimony in dispute are

protected by the work product privilege under Federal Rule of

Civil Procedure 26(b) (3) and Hickman v. Taylor,

10ther issues raised by this motion that are not discussed in this order were resolved by agreement.

- 2 - (1947), and (ii) whether Clifford waived the privilege by

reviewing the documents to refresh his recollection before his

deposition. See Fed. R. Evid. 612; In re Atlantic Financial

Management Securities Litigation,

(D. MA

1988); Bailey v. Meister Brau, Inc.,

(N.D.I11.

1972) .

Clifford's testimony shows that while he initially came

across the information in the normal course of business, he

prepared the schedule of vendors allegedly paid twice at the

reguest of counsel and in preparation for litigation. (Clifford

II at 9-10, 44) . The schedule is therefore work product under

Rule 26(b)(3). Harper v. Auto Owners Insurance Co.,

(S.D. Ind. 1991) .

Clifford's testimony does not show that he reviewed the

documents to refresh his memory before testifying. In volume I

on page 42, Clifford clearly states that he "didn't review" the

workpapers but merely identified them as his. Plaintiffs point

to page 24 of volume II when Clifford answered Attorney Topman's

guestion, "[w]hen was the last time you refreshed your

recollection with these documents," Clifford answered that he had

looked at them "before the last deposition". However, reading

this guotation in context, it becomes clear that the documents to

which Clifford refers on page 24 are workpapers dealing with the

escrow account, an entirely different issue and one which was

resolved by the parties without the court's intervention.

Finally, Clifford testified that one of defendants' attorneys

- 3 - sent him some of the workpapers via fax prior to the deposition,

asking him to explain them. (Clifford Vol II at 5 and 90.)

Nowhere in the deposition, however, does Clifford state that he

reviewed the documents for the purpose of preparing for his

deposition. Thus, Clifford did not waive his work product

privilege by reviewing the documents for the purpose of

refreshing his recollection before his deposition.

Plaintiffs also ask the court to compel the production of

certain documents and testimony by defendants' expert witness,

Brian Reynolds. The Defendants have disclosed Reynolds as one of

their testifying expert witnesses. He has also served as a

consultant on various issues upon which he will not testify. The

plaintiffs claim that the various reports and summaries Reynolds

produced for the defendants in his capacity as consultant are not

privileged under Federal Rule 26(b)(3) because he is a testifying

expert and cannot be an expert and claim the work product

privilege at the same time.

Testimony and documents cannot ordinarily be compelled from

a testifying expert under Rule 26(b)(4)(A) on issues relating to

that expert's work as a retained consultant under Rule

26(b) (4) (B) . Inspiration Consol. Copper Co. v. Lumbermens Mutl.

Cas. Co., 60 F.R.d. 205, 210 (S.D. N.Y. 1973); but see Elco

Indus, v. Hogg,

, *3 (N.D. 111. 1988) (documents

discoverable where no clear delineation between expert's role as

consultant and testifying expert). As the court in Inspiration

Consol. Copper noted, an expert can "wear two hats" and can

- 4 - advise on one subject and give testimony on another. I_d. Thus,

information provided to the defendants by Reynolds in his

capacity as a consultant under the direction of counsel and in

anticipation of litigation will gualify as work product material

under Federal Rule of Civil Procedure 26(b) (3) unless the

material pertains to the subject area about which he will

testify. See Beverage Mktq. Corp v. Oqlivy & Mather Direct

Response, Inc.,

(S.D.N.Y. 1983).

Plaintiffs offer no other reason why this material should be made

discoverable. Accordingly, the court will not compel the

production of testimony and documents that pertain only to

subjects about which Reynolds will not testify.

2. Plaintiffs' Motion to Compel Answers to Interrogatories and Production of Documents

Plaintiffs seek to compel the defendants to disclose

documents which postdate the commencement of the litigation.

Defendants argue that plaintiffs have failed to demonstrate that

the reguested documents are "reasonably calculated to lead to the

discovery of admissible evidence." Fed. R. Civ. P. 26(b) (1) .

They also argue that production of the documents would be "unduly

burdensome."

The fact that the documents at issue were prepared after the

commencement of the litigation is not sufficient to overcome

plaintiffs' claim that the documents will lead to evidence which

is relevant to the amount of their damages. Nor has a showing

been made that production of the documents would be unduly

- 5 - burdensome. Although the defendants may have valid work product

or other objections to the production of specific post-litigation

documents, the court expects the parties to resolve such concerns

by agreement.

3. Defendant's Motion to Conclude Depositions

Defendant, Boston Five, moves for leave to conclude the

depositions of plaintiffs, Daniel R. Titcomb and Robert J. Lloyd,

Esguire and to take the deposition of the bookkeeper of

Cleveland, Waters & Bass, P.A.

On January 5 and 6, 1993, the Bank deposed Attorney Lloyd,

who agreed to produce Cleveland, Waters & Bass' accounts

receivable documents. The defendants did not receive these

documents until April 15, 1993, and state that significant

guestions arose from their review of the documents. While the

discovery deadline is an important tool, in this case, allowing

these depositions would not impose an undue burden on either

party. Accordingly, this motion is granted.

4. Defendants' Motion to Compel Documents

The defendants seek production of documents, some of which

were reguested in Defendants' First Reguest for Production of

Documents and some of which plaintiffs agreed to produce in their

answers to Defendants' First Set of Interrogatories. The

plaintiffs objected by claiming that they have produced all of

the reguested documents that are in their possession.

- 6 - Because plaintiffs have produced all responsive documents in

their custody and control. Defendants' Motion to Compel Documents

is denied.

CONCLUSION

For the reasons stated above. Plaintiffs' Motion to Compel

the Production of Documents and Answers to Questions Propounded

at Deposition (document no. 7 6) and Defendants' Motion to Compel

Production of Documents (document no. 7 9) are denied, and

Plaintiffs' Motion to Compel Answers to Interrogatories and

Production of Documents (document no. 97) and Defendant Boston

Five Cents Savings Bank, FSB's Motion for Leave to Conclude

Depositions (document no. 98) are granted.

SO ORDERED.

Paul Barbadoro United States District Judge May 24, 1993

cc: James R. Muirhead, Esg. Jamie N. Hage, Esg. Robert L. Ketchand, Esg. Donald Elliot, Esg. Bruce Topman, Esg. Thomas H. Richard, Esg.

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