THE MORGANTI GROUP, INC. v. STAMFORD PHASE FOUR JV, LLC, ICON ARCHITECTURE, INC. AND ATLANTIC SPECIALTY INSURANCE COMPANY DOCKET NO. CV-X07-18-6117069-S Superior Court of Connecticut, COMPLEX LITIGATION DOCKET AT HARTFORD March 03, 2022 Noble, Cesar A., Judge MEMORANDUM OF DECISION RE MOTIONS TO RECONSIDER, # 224, AND FOR PROTECTIVE ORDER, # 226 *1 Before the court are motions of the defendant, Stamford Phase Four, LLC (defendant), for reconsideration and for protective order related to production of expert records requested by the plaintiff, Morganti Group, Inc. (Morganti). For the following reasons, the motions are granted in part and denied in part. These motions follow the court's February 2, 2022, decision (#220),[1] on objections to the production of certain expert documents. Those objections asserted that Morganti's requests fell outside of the ambit of Practice Book § 13-4 (3) and were subject to the attorney-client privilege and work-product doctrine. The court rejected all the arguments raised by the Objecting Parties,[2] largely on the grounds that the provision of communications and documents to a testifying expert waives any protection afforded by the attorney-client privilege or work-product doctrine. The decision was made with the background of the parties’ stipulations that reflected an agreement to provide protection to certain documents but to dispute others. As the defendant observes in both the present motions, the court, in #220, failed to consider item 3 of the stipulation agreed to by the parties (#214) (Stipulation). This item provides “[i]f your opinion(s) relate to Project scheduling or delays, all native form (.XER) scheduling files prepared by you within the scope of your engagement, except that this request shall not include ... any native form (.XER) scheduling files prepared by you solely and exclusively for mediation[3] which you have not utilized in the formation of your opinion(s).” (Emphasis added.) While no specific argument was advanced by the defendant as to these documents in its objection, the court should have, but did not, address in #220 the significance of this Stipulation to its ultimate order. The court also finds that in light of this Stipulation, the defendant, and the other Objecting Parties were justified in not having addressed whether the file of a “consulting expert” is subject to discovery to the same extent as that of a “testifying expert.” Accordingly, the defendant and the Objecting Parties did riot also raise the implications of General Statutes § 52-235d,[4] which generally prohibits the disclosure of communications related to mediation, as an argument in favor of non-disclosure of expert communications and documents related to mediation. *2 Reconsideration is appropriate because the defendant has demonstrated that there has been a misapprehension of facts and a principle of law which has been overlooked by the court. See In re Elianah T.-T., 327 Conn. 912, 913–14, 171 A.3d 447 (2017) (“a motion for reconsideration is intended to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts” [internal quotation marks omitted]). Becasue the parties agreed, pursuant to the terms of their Stipulation, that “scheduling files prepared by the [expert] solely and exclusively for mediation which [the expert has] not utilized in the formation of [the expert's] opinion(s)” are not subject to production, the court will conform its decision to this agreement. The court further rules, in the interest of completeness, that no “oral or written communication received or obtained during the course of a mediation;” see § 52-235d (b); is subject to disclosure. While covering only communications provided or prepared “solely and exclusively for mediation,” this is a broad protection and covers the period up to the last mediation in August of 2020, and includes analysis of subcontractors’ claims, shared mediations documents, potential settlement strategy, and scenarios including the parties’ respective settlement positions before mediation failed. This holding is informed largely by the protection afforded mediations by § 52-235d, which, in the court's view, shields otherwise discoverable privileged communications and work product waived by the disclosure of the Objecting Parties’ expert as a testifying expert; see #220, pp. 4–6, and discussion below; and the parties’ Stipulation. The parties also agreed in their Stipulation that “certain limited records, such as expert time sheets, may contain entries that may meet the requirements for redaction to protect an attorney's mental impression. Any such redaction shall be described on an appropriate privilege log.” Stipulation, n.2. Because the parties have so agreed, the court gives due regard to their agreement and conforms its order (#220) accordingly. Tangential to the protection afforded the parties by footnote 2 of the Stipulation and the court's order regarding mediation material, the defendant also advances the argument that, absent the provisions of the Stipulation, it would have asserted a claim of protection to which a consulting expert would be entitled for “technical advice in preparation for depositions of Morganti fact witnesses.” Given the court's failure to fully address the Stipulation in #220, this argument will be considered. To be clear, the only other areas not covered by the mediation protection are assistance “with providing technical guidance in preparing questions for depositions of Morganti's fact witnesses.” #226, p. 3. The interesting issue presented by the present case is that the defendant claims that their expert wears the “dual hats” of having been a consulting expert before he was disclosed as a testifying expert.[5] This court holds that, generally, the full records of a “dual hat” expert, that is one that was retained initially as a consulting expert and subsequently disclosed as a testifying expert, are subject to full disclosure insofar as they are relevant to opinions to which the expert will testify. Thus, even if, as the defendant asserts, its expert was retained initially solely to assist in evaluating and responding to the plaintiff's claims and providing technical guidance in preparing questions for depositions of Morganti's fact witnesses, the subsequent transformation of the role of the expert from a consulting expert to a testifying expert serves to waive any protections afforded to otherwise privileged communications or subject to the work-product doctrine as to any “materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case ....” (Emphasis added). See Practice Book § 13-4 (b) (3) (governing disclosed expert discovery). The privilege is not waived as to any communications or documents that do not pertain to opinions to which the expert will testify. “[T]he broader discovery for testifying experts applies to everything except materials generated or considered uniquely in the expert's role as consultant.... The term ‘considered’ as used in Rule 26 (a) (2) (B)[6] should be construed expansively in favor of the party seeking discovery, and the courts should order disclosure when there is at least an ambiguity as to whether the materials informed the expert's opinion.... In most instances, if the subject matter directly relates to the opinion in the expert report, there will be at least an ambiguity as to whether the materials informed the expert's opinion.... The party resisting disclosure of the documents must demonstrate that the information considered for consulting expert purposes was not also considered pursuant to the expert's testifying function.” (Citations omitted; emphasis in original; internal quotation marks omitted.) United States v. City of Clark, United States District Court, Docket No. 217CV02303-MMD (BNW), 2019 WL 7116100, at *2 (Nev. December 23, 2019). *3 The determination that any protection afforded by the attorney-client privilege or work-product doctrine is deemed waived as to communications and materials relevant to an expert's trial opinions is in accord with this court's analysis in its earlier decision, #220, pp. 4–6, incorporated herein, regarding the waiver of any protection offered to an expert once disclosed as a testifying expert. Conversely, any communications or materials obtained by the expert relative to issues for which the expert's opinion will not be offered, are simply irrelevant. As Morganti observes, the problems presented by a “dual hat” expert arise from the defendant's choice to use its expert in both functions. See In re Commercial Money Center, Inc., Equipment Lease Litigation, United States District Court, Docket No. 1:02CV16000 (NAV) (N.D. Ohio 2008) (248 F.R.D. 532, 541) (discussing waiver privilege under common interest doctrine and stating “[w]hatever hardship results from the instant circumstance, it is more fairly born by the parties who created the circumstance than by the [non-disclosing parties] who are entitled to the information under Rule 26”); Cox v. Djo, LLC, United States District Court, Docket No. 07-1310-AA (TMC), 2009 WL 10698349, at *3 (D. Or. September 21, 2009) (“[b]y retaining and utilizing Dr. Swanson as a consulting expert and as a testifying expert in litigation regarding the same subject matter, plaintiffs’ counsel compromised the work product protection over materials he reviewed as a consultant” [emphasis omitted]). There is, of course, a substantial burden, and likely cost, involved in the need to retain both a consulting and testifying expert to avoid the waiver of the attorney-client privilege and the work-product doctrine. The guidance from our Supreme Court is that such privileges and doctrines are “strictly construed because [they tend] to prevent a full disclosure of the truth in court....” (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 710, 647 A.2d 324 (1994). The inherent difficulty in drawing a definitive temporal or other demarcation between the “materials, created and/or relied upon by an expert” in providing consulting versus testifying opinions,[7] and the potential for misuse by legal machinations of the salutary purposes informing the attorney-client privilege and the work-product doctrine,[8] counsel an approach in “dual hat” cases that limits discovery of the testifying expert only to communications and opinions that do not pertain to any “materials, created and/or relied upon by the expert in connection with his or her opinions in the case.” *4 In the context of the present case, which involves a Stipulation for general protection of those portions of records that “contain entries that may meet the requirements for redaction to protect an attorney's mental impression;” Stipulation footnote 2; the Objecting Parties shall provide a privilege log, compliant with the mandates of Practice Book § 13-3 (d), for those communications or documents which do not pertain to opinions that their expert is expected to testify, and then only to that portion of the records that are claimed to disclose an attorney's mental impression. The latter limitation is derived from the confines of the parties’ agreement articulated in footnote 2. Footnotes [1] See Morganti Group, Inc. v. Stamford Phase Four JV, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-18-6117069 (February 2, 2022, Noble, J.). The decision adjudicated Morganti's request for the production of the disputed expert documents, (#215) and the Objecting Parties’ objection thereto (#216). [2] This term was used in #220, n. 1, to refer to those parties that objected jointly to the production of certain expert documents and include the present defendant, United Steel, Inc., and C&H Electric, Inc. They will similarly be collectively referred to as the Objecting Parties herein. The only movant in the present motions is the defendant. [3] The parties engaged in two mediation sessions in July and August of 2020. [4] General Statutes § 52-235d (b) provides in relevant part that any “participant in a mediation shall not voluntarily disclose or, through discovery or compulsory process, be required to disclose any oral or written communication received or obtained during the course of a mediation, unless (1) each of the parties agrees in writing to such disclosure, (2) the disclosure is necessary to enforce a written agreement that came out of the mediation, (3) the disclosure is required by statute or regulation, or by any court, after notice to all parties to the mediation, or (4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law.” [5] Because of the court's decision, infra, it need not consider the factual question of whether the expert was in fact originally retained solely as a consulting expert and thus does not consider the expert's retention letter, which specifically contemplated that its work would involve testifying. See #227, Affidavit of Sara Bryant, Exhibit A (“[w]e understand that you may call a member of our firm as an expert witness in this matter”). [6] Rule 26 (a) (2) (B) of the Federal Rules of Civil Procedure provides in relevant part that “[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness informing them ....” [7] An expert “cannot be expected to draw a mental line in the sand between information gleaned in an earlier, consulting context and information later learned as a testifying expert when the subject matter is so similar.” (Internal quotation marks omitted.) In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Product Liability Litigation., United States District Court, Docket No. 2:18-MD-2846 (EAS), 2021 WL 2280657, at *4 (S.D. Ohio June 4, 2021). A temporal demarcation is drawn in the present case only because of the intervention of the mediation. [8] “[T]he mere chronology of [the expert's] engagements is not the determining factor ... because, if it were, then the opportunity for parties to shield disclosure of otherwise discoverable documents considered by their experts simply by hiring those individuals first as consultants and later as experts would be too great.” (Internal quotation marks omitted.) Securities & Exchange Commission v. Rio Tinto PLC, United States District Court, Docket No. 17CV7994 (AT) (DF), 2021 WL 2186433, at *7 (S.D.N.Y. May 28, 2021).