WPI V. Meritor CV-97-478-M 09/13/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

WPI Termiflex, Inc., Plaintiff

v. Civil No. 97-478-M

Meritor Automotive, Inc., Defendant

O R D E R

WPI Termiflex, Inc. ("Termiflex") brings this diversity

action against Meritor Automotive, Inc. ("Meritor"), seeking

damages for breach of contract and breach of the implied covenant

of good faith and fair dealing. It claims that Meritor's

predecessor in interest (Rockwell International Corporation)

breached a contract to purchase customized, handheld computers

developed by Termiflex.

During the course of discovery, Termiflex served Meritor

with a subpoena duces tecum seeking, among other things,

testimony concerning "environmental testing of the Data System

Project." In response, Meritor offered Gary Ford, its Director

of Electronics, as its Rule 30(b) (6) designee to testify

regarding that category of information. Importantly, however,

Meritor disclosed that it expected that Mr. Ford might also offer "opinion testimony in regard to certain damages issues." See

Heritor's memorandum (document no. 18) at 2. Accordingly, Mr.

Ford was deposed in his capacity as both a Rule 30(b)(6) witness

with regard to environmental testing and as an expert witness

with regard to damages.

In preparing for his deposition. Ford received and reviewed

all documents produced in this matter, which counsel for Meritor

assembled according to their bates system numbers. Meritor says

that to facilitate Ford's review, counsel provided Ford with a

document index. That index also contained short excerpts from

some or all of the documents counsel considered relevant to

Heritor's defenses and counterclaims. That index is now the

subject of dispute. Termiflex wants it and Meritor claims it is

privileged (the attorney-client privilege and/or the work-product

doctrine) and not subject to discovery.

The dispute presents an unusual situation in which New

Hampshire's attorney-client privilege is arguably at odds with

federal rules of discovery. Heritor's discovery obligations are

governed by the Federal Rules of Civil Procedure. The extent to

which the index is privileged (and arguably shielded from

2 discovery), however, is governed by New Hampshire law. See Fed.

R. Evid. 501.

Discussion

At the outset, it is worth noting that the bases for

Termiflex's claim to the document index is not entirely clear.

Termiflex seems to claim that the index is discoverable under

Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, insofar

as Termiflex asserts that the index was provided to Meritor's

expert witness in anticipation of his deposition. See

Termiflex's reply memorandum (document no. 20) at 2. See

generally Fed. R. Civ. P. 26(a) (2) (setting forth the rules

governing the disclosure of expert reports and all "data or other

information considered by the witness in forming the [expert]

opinions") (emphasis supplied).

It also bears noting that this case presents a fairly unigue

situation in which one person, Mr. Ford, appeared at his

deposition in two distinct capacities: first, as Meritor's

corporate designee under Rule 30(b) (6), and second, as Meritor's

expert witness on damages. Unfortunately, the record is unclear

as to how, or the extent to which, Mr. Ford "considered" or

relied upon the index in preparing for his deposition. Perhaps

3 overstating the record evidence a bit, Termiflex asserts that

Ford relied, at least in part, upon that index in forming his

expert opinions on damages (thus, implicitly invoking the

provisions of Rule 26(b)). See Termiflex's memorandum (document

no. 15) at 2 (referencing pages 27-30 and 143-44 of Ford

deposition). Ford, however, is more circumspect, saying only

that he used the index to help him locate documents concerning

environmental testing and suggesting that the index provided no

assistance to him in forming his expert opinions on damages. See

Ford deposition at 30. See also Affidavit of Gary Ford (attached

to document no. 22) (testifying that he used the index solely as

a means by which to locate documents; that he acguired his

understanding of matters at issue in this case solely based upon

his review of the documents themselves, and not the index; and

that he never retained a copy of the index).

Insofar as Mr. Ford may have been provided with (or

"considered") the disputed index only to assist him in preparing

for his testimony as Heritor's corporate representative (and not

as an expert witness on damages), the provisions of Federal Rule

of Civil Procedure 26(a) (2) (B) would seem inapplicable.

Nevertheless, the court need not resolve that factual dispute

because even if Rule 26 does apply to the parties' current

4 discovery dispute, the court concludes that, under the unique

circumstances presented in this case, it does not require Meritor

to disclose the disputed document.1

At its core, the disputed document is simply an index of all

written materials produced durinq discovery. Termiflex concedes

that it has copies of all such documents and has likely prepared

a substantially similar index of its own. As to some of the

documents appearinq on the disputed index, counsel for Meritor

apparently excerpted portions which they believed relevant to

Meritor's claims and defenses and included those excerpts in the

index. Termiflex does not dispute that characterization:

Simply put, the index is a summary of documents produced durinq discovery by both Meritor and Termiflex with selected excerpts of certain documents considered relevant to Meritor's counterclaims and defenses.

1 There is considerable debate as to whether the provisions of Rule 26, as amended in 1993, require the disclosure of privileqed materials provided to an expert witness in preparation for his or her testimony. Pointinq to the advisory note to Rule 26(a)(2)(B), a number of courts have concluded that disclosure of even privileqed materials is required. See, e.g., B.C.F. Oil Refining, Inc. v. Consolidated Edison Co.,

(S.D.N.Y. 1997). Other courts, however, have reasoned that the amended rule does not abroqate the work product or attorney client privileqes. See, e.g.. The Nexxus Products Co. v. CVS New York. Inc.. ___ F.R.D. ,

(D. Mass. June 22, 1999).

5 Termiflex's memorandum at 6. Thus, it would appear that

Termiflex seeks the index exclusively to: (1) learn which

documents counsel for Meritor believed were important to

Heritor's claims and defenses in this action; and (2) review

whatever editorial comments counsel may have made with regard to

some of those documents. Meritor asserts that all such

information is protected by both the work product doctrine and

the attorney-client privilege. The court need only address the

latter argument.

In response to Meritor's assertion of the attorney-client

privilege, Termiflex says that Mr. Ford "is not a client or

representative of a client of Meritor because he is not a member

of the 'control group.'" Termiflex's memorandum at 6.

Accordingly, Termiflex asserts that any materials provided to him

are necessarily non-privileged. Moreover, Termiflex contends

that even if the index is arguably privileged, that privilege was

waived when Meritor shared it with Mr. Ford. Id., at 3-4. The

court disagrees.

As the Rule 30(b)(6) designee, Mr. Ford appeared and

testified as the corporal embodiment of Meritor. Thus, he was

necessarily "the client" and the attorney-client privilege

6 attaches to any information counsel provided to him for the

purposes of providing legal opinions, legal services, or

assistance to Meritor. See N.H. R. Evid. 502(b). As the client,

Mr. Ford's membership (or non-membership) in the so-called

"control group" is immaterial. That inguiry is only relevant

when the privilege is asserted with regard to materials shared

with an agent of the client; here, as noted above, Mr. Ford was

the client, not merely one of its agents. Likewise, the

attorney-client privilege is not waived by providing him - the

client - with otherwise privileged documents which constitute

"confidential communications made for the purpose of facilitating

the rendition of professional legal services" to Meritor. See

N.H. R. Evid. 502(b)(1) ("A client has a privilege to refuse to

disclose and to prevent any other person from disclosing

confidential communications . . . between the client or his or

her representative and the client's lawyer. . ..").

Based upon the record currently before it, the court

concludes that the index generated by Meritor's counsel and

provided to Mr. Ford constitutes a "confidential communication"

and falls within the scope of New Hampshire's attorney-client

privilege. See N.H. R. Evid. 502(a)(5) and (b)(1). See also

Riddle Soring Realty Co. v. State,

(1966) .

7 And, Termiflex has failed to demonstrate that the circumstances

presented in this case warrant intrusion into that attorney-

client relationship. See, e.g., McGranahan v. Dahar,

(1979) ("The attorney-client privilege may not be

absolute when there is a compelling need for the information and

no alternate source is available."). See also State v. Eason,

(1990) (suggesting, at least in the context of

a criminal trial where constitutional issues of confrontation are

presented, that a defendant may, upon an adeguate showing of

need, pierce the attorney-client privilege and review otherwise

privileged materials in the possession of a witness).

Conclusion

This case presents a somewhat unigue situation in which "the

client" (i.e., Mr. Ford appearing as the corporal embodiment of

Meritor) gave deposition testimony as both a fact witness and an

expert witness. Thus, while the provisions of Rule 26(a) (2) (B)

would ordinarily apply (and might arguably reguire disclosure of

the privileged materials provided to Mr. Ford and upon which he

relied in forming his expert opinions), the circumstances of this

case are sufficiently unigue that the court concludes that those

provisions do not operate to annul the attorney-client privilege between defense counsel and their client, Meritor, appearing in

the person of Mr. Ford.

The index provided to Mr. Ford prior to his deposition

testimony includes: (1) a list of materials readily available to

plaintiffs; and (2) opinions and other "confidential"

communications provided to Meritor in furtherance of counsel's

provision of legal services (i.e., an implicit statement of

counsel's opinion as to which documents, or portions thereof, are

central to Meritor's claims and defenses in this proceeding).

Conseguently, the circumstances presented in this case are

distinct from those in which the attorney-client privilege is

arguably waived when otherwise privileged materials are provided

to an expert witness. Here, the privileged materials were

provided to the client itself; they were not shared with an

independent third-party hired simply to offer expert opinion

testimony.

Accordingly, the court concludes that the reguested

materials are protected from disclosure by the attorney-client

privilege. Termiflex's motion to compel (document no. 15) is

denied.

9 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 13, 1999

cc: Thomas J. Donovan, Esq. Anthony M. Feeherry, Esq. E. Tupper Kinder, Esq.

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