This matter was before the court on September 7, 2011, for hearing on the California Department of Forestry and Fire Protection ("CalFire") and the California Attorney General's Office's motion for a protective order and to quash Sierra Pacific Industries' subpoena to the California Attorney General. Deputy Attorney General Tracy Winsor appeared on behalf of third parties CalFire and the California Attorney General. Bill Warne, Meghan Baker and Michael Schaps of Downey Brand appeared on behalf of Sierra Pacific Industries. Todd Pickles and Kelli Taylor appeared for the United States. For the reasons explained below, the motion is granted in part and denied in part.
This court previously held that the United States waived any applicable privileges and protections pertaining to certain documents that may have or should have affected the opinions of two of the United States' expert witnesses, Josh White and Dave Reynolds, who prepared the Origin and Cause report for the Moonlight Fire. Dckt. No. 210. The court ordered the United States to produce "all documents and communications that White and Reynolds considered, generated, saw, read, reviewed, and/or reflected upon in connection with their analysis of the Moonlight Fire." Id. at 19.
The United States represented that it did not produce some of the documents because it did not have possession, custody or control over them as the documents were solely held by CalFire. The court denied SPI's motion to compel as to these documents and noted that Sierra Pacific would have to subpoena the documents from the state. Id. at 18. Sierra Pacific issued a subpoena to the California Attorney General. CalFire then filed this motion, asking for a protective order or to quash Sierra Pacific's subpoena for production of documents.*fn1
The documents at issue pertain to the United States' experts White and Reynolds, who helped prepare the Origin and Cause report for the Moonlight Fire. White was an investigating officer for CalFire with respect to the Moonlight Fire. Dckt. No. 285 at 4. After January 2008, when he had finished the Origin and Cause Report and submitted it to CalFire,*fn2 he became a case manager for the Moonlight Fire in the state court litigation. Dckt. 285 at 10. According to CalFire, he "generated, received, and transmitted documents he had not considered and did not consider in his capacity as the origin and cause investigator for the Moonlight Fire." Id.
Sierra Pacific has deposed White for a total of 16 days in the state and federal actions. Id. CalFire represents that it has already produced "all documents that White read, reviewed, relied upon, generated, received, considered, or considered and rejected in undertaking his 2007 investigation and analysis of the Moonlight Fire, and in writing his report about that investigation and analysis." Dckt. No. 285 at 11. The remaining documents that CalFire refuses to produce were authored by White in his separate capacity as a Moonlight Fire case manager. Id. at 11.
As for Reynolds, CalFire retained him as an expert consultant in the Moonlight Fire litigation in August 2010. Id. The only documents in the possession of the California Attorney General's office "that reflect communications with Reynolds are limited to contract documents, invoices, and one scheduling logistics communication." Dckt. No. 285 at 12. Thus, there are no documents pertaining to Reynolds that are presently in dispute. However, CalFire is concerned that Sierra Pacific will continue to serve subpoenas on the California Attorney General in the future for work that Reynolds has not yet done. Id.
II. The Parties' Arguments
The court must determine whether under these circumstances, where CalFire and the United States have entered into a joint prosecution agreement, but CalFire is not a party to this case, documents stemming from CalFire's use of White as a case manager and a discovery consultant and retention of Reynolds as a consultant must be produced, despite the documents' privileged nature, because the United States has designated White and Reynolds as testifying experts in this action.
CalFire argues that Sierra Pacific's subpoena should be quashed because the documents sought are privileged and work product, and that CalFire, as the holder of these privileges, has done nothing to waive them. CalFire further contends that Sierra Pacific's arguments are barred by judicial estoppel, and that the subpoena "assumes too much and overreaches the Court's May 26, 2011, ruling." Dckt. No. 285 at 7, 12. Sierra Pacific argues that it is entitled to the documents, as Fed. R. Civ. P. 26 creates a bright-line rule mandating disclosure of all documents provided to testifying experts, and this trumps CalFire's privilege and work product claims, and rebuts CalFire's other arguments. Id. at 34-35.
III. Rule 26 Trumps Privilege
A. Existing Legal Standards
The parties discuss several persuasive district court cases. In Bitler Investment Venture II v. Marathon Ashland Petroleum, 2007 WL 465444 (N.D. Ind. Feb. 7, 2007), one plaintiff forwarded privileged documents to an expert witness without the knowledge or consent of the other plaintiff or of the shared counsel for both plaintiffs. The other plaintiff argued that the documents should not be disclosed because both plaintiffs did not agree to the disclosure. Id. at
*3. The court rejected this argument and ordered that the documents be produced, finding: "Because one of the purposes of disclosure under [an earlier case] is to assist opposing counsel in uncovering all of the information that potentially influenced an expert's testimony, it makes little difference whether the attorney or someone else provided the information and influenced the expert's opinion." Id. at *4. The court did not explicitly analyze whether the conduct of the holder of the privilege was relevant, but did write that "counsel can easily protect genuine work product by simply not divulging it to the expert . . . [and] instructing clients not to provide the materials to the expert." Id. at *5.
In re Commercial Money Center, Inc., 248 F.R.D. 532 (N.D. Ohio 2008), involved a similar situation. SafeCo and other Sureties entered into a joint-interest agreement and shared a common consultant. Id. at 535. SafeCo disclosed the consultant as a testifying expert; the others did not. Id. The other side sought discovery of all of the documents in the testifying expert's file, including documents generated or reviewed by the expert witness in his role as a consultant for the non-SafeCo Sureties. Id. The non-SafeCo Sureties argued that ...