Free Memorandum - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

John J. Bouma (#001358) James R. Condo (#005867) Patricia Lee Refo (#017032) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 E-mail: [email protected] Attorneys for Defendant Kirkland & Ellis

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Diane Mann, as Trustee for the Estate of LeapSource, Inc., et al., Plaintiffs,

No. CIV 02 2099 PHX RCB DEFENDANTS' MEMORANDUM REGARDING DISCOVERY OF PLAINTIFFS' DESIGNATED EXPERT WITNESS (Assigned to Hon. Robert C. Broomfield)

12 13 v. 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 Defendants submit this brief to assist the Court in resolving the discovery dispute that is the subject of the telephonic conference set for January 10, 2006 at 2:00 p.m. On December 5, 2005, defendants deposed plaintiff Tom Gilman in his capacity as plaintiffs' valuation expert. During that deposition, Mr. Gilman refused to answer questions regarding his communications with counsel about his expert testimony. Mr. Gilman also testified about a draft report that he prepared and gave to his lawyers' assistant, which plaintiffs have not produced. When pressed, Mr. Gilman's counsel asserted that the information and documents are protected from disclosure by the attorneyclient privilege and the work product doctrine. There is no basis to these assertions. A person, even a party to an action, who is designated as an expert witness and offers expert opinions cannot assert the protections of GTCR Golder Rauner, L.L.C.; a Delaware limited liability company, et al.

Snell & Wilmer L.L.P.

Case 2:02-cv-02099-RCB

Document 307

Filed 01/06/2006

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the attorney-client privilege or work product doctrine to avoid discovery of his expert opinions and testimony. Accordingly, defendants request that the Court order Mr. Gilman and his lawyers to produce all documents (electronic and otherwise) related to his expert opinion and testimony and to answer questions regarding his communications with counsel about his expert opinions and testimony. I. FACTUAL BACKGROUND As the Court is aware, Mr. Gilman is one of the plaintiffs in this case. On July 15, 2005, plaintiffs designated Mr. Gilman as an expert witness. On October 21, 2005, Mr. Gilman produced his report entitled "Summary of Opinion of Tom Gilman Regarding the Value of LeapSource and ICG." (See Summary of Opinion, dated October 21, 2005, attached as Exhibit 1.) On December 5, 2005, defendants deposed Mr. Gilman in his capacity as a valuation expert and questioned him concerning his communications with counsel about his expert opinions and testimony. (Transcript of Gilman Deposition ("Gilman Depo.") at 5:8 - 6:2, attached as Exhibit 2.) Mr. Gilman's counsel instructed him not to answer on the ground that the information was protected by the attorney-client privilege and work product doctrine. (Gilman Depo. at 17:1 ­ 18:19, 101:15 ­ 103:12.) In addition, Mr. Gilman testified that he prepared a hand-written draft of his Summary of Opinion and delivered it to an employee at the firm of Beus Gilbert, counsel for plaintiffs. (Gilman Depo. at 96:19 ­ 97:23.) Mr. Gilman said that he had no idea where the handwritten draft report was currently located. (Gilman Depo. at 98:5-6.) That same day, counsel for K&E sent a letter to plaintiffs' counsel explaining that Mr. Gilman's privilege claims were without basis. (See Letter to Kevin Breger, dated December 5, 2005, attached as Exhibit 3.) In that letter, counsel also renewed their request for (1) all drafts of Mr. Gilman's summary of opinions, including the hand-written draft that he delivered to plaintiffs' counsel; (2) all communications between Mr. Gilman and any of the plaintiffs regarding his expert opinions or summary; (3) all communications between Mr. Gilman and plaintiffs' counsel regarding his expert
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opinions or summary; (4) any other documents on which Mr. Gilman relied in preparing his summary or formulating his opinions. In a response dated December 7, 2005, plaintiffs' counsel reasserted their objections and refused to produce the requested materials. (See Letter to Joseph Adams, dated December 7, 2005, attached as Exhibit 4.) In response, in a letter dated December 13, 2005, counsel for Kirkland & Ellis cited case law in support of its position and requested that Mr. Gilman accordingly withdraw his objections based on the attorneyclient privilege and the work product doctrine. (See Letter to Kevin Breger, dated December 13, 2005, attached as Exhibit 5.) Plaintiffs' counsel did not respond to that letter or, despite defense counsel's request, provide any authority to support their position. II. MR. GILMAN CANNOT WITHHOLD DOCUMENTS OR TESTIMONY ON THE BASIS OF ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT DOCTRINE It is well-settled in Arizona and elsewhere that there is no protection -- based on either attorney-client privilege or work product doctrine -- for communications between a lawyer and a designated expert witness. See Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 37, 932 P.2d 297, 302 (Ct. App. 1997) (work product protection does not extend to communication between lawyer and an expert witness); Granger v. Wisner, 134 Ariz. 377, 380, 656 P.2d 1238, 1241 (Ariz. 1982) (same). Further, the "party asserting that the attorney-client privilege applies `must prove that it has [] not waived the privilege.'" Centuori v. Experian Information Solutions, Inc., 347 F. Supp. 2d 727, 729 (D. Ariz. 2004) (citing Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981)). Plaintiffs have claimed that this settled rule does not apply to Mr. Gilman because he is also a party to this case, as opposed to an expert retained specifically for this case. But there is nothing to support this distinction. A witness who is designated as an expert and offers expert opinions, whether or not a party to the case, cannot claim a privilege as to the expert's opinions or testimony. See Kooima v. Zacklift Int'l, Inc., 209 F.R.D. 444, 447 (D.S.D. 2002); Mushroom Assocs. v. Monterey Mushrooms, Inc., No. C-91-1092,
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1992 U.S. Dist. LEXIS 20640, *7 (N.D. Cal. Aug. 21, 1992); Shooker v. Superior Court, 111 Cal. App. 4th 923, 930, 4 Cal. Rptr. 3d 334, 339-40 (Cal. Ct. App. 2003). For example, in Kooima, the plaintiff in a patent infringement suit designated himself as an expert witness. Defendants then propounded discovery seeking documents related to his expert opinion, including documents exchanged between plaintiff and his attorneys. 209 F.R.D. at 446. Plaintiff objected on the basis of the attorney-client privilege and the work product doctrine. Id. The court rejected the plaintiff's privilege claim and held that "[b]ecause Plaintiff has designated himself as an expert, therefore, all documents and information disclosed to him (including correspondence from his attorney) in connection with his anticipated expert testimony are discoverable." Id. at 447. Moreover, the court ordered the plaintiff to produce a privilege log for any attorney-client communications that were not relevant to his expert testimony. Id. Similarly, in Mushroom Associates, the court held that a party waived its privilege regarding documents reviewed by its employee in his capacity as an expert witness. 1992 U.S. Dist. LEXIS 20640, at *7. In that patent infringement case, plaintiffs designated one of the co-inventors of the patent as an expert witness. Id. at *5. The court held that the privilege was waived as "to those documents which the employee considered when formulating his expert testimony." Id. at *7. Likewise, the California Court of Appeals held that a party turned expert witness waives the attorney-client privilege by testifying as an expert. In the Shooker case, the defendants deposed the plaintiff in his capacity as an expert witness. 111 Cal. App. 4th at 926, 4 Cal Rptr. 3d at 336. The plaintiff objected to questions concerning his communications with his lawyers on the ground of attorney-client privilege. The court ordered the plaintiff to answer the question, and the plaintiff subsequently chose to withdraw his designation as an expert to avoid answering the questions. On appeal, the court of appeals held that if a party "testifies as an expert (such as by stating his opinion in a declaration or at a deposition) the privilege is waived." Id. at 930, 4 Cal Rptr. 3d at 33940.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

III.

CONCLUSION There is no basis for plaintiffs to assert a privilege with respect to a designated

expert witness who has offered expert opinions. Defendants respectfully request that the Court: (1) order plaintiffs and their counsel to produce all documents regarding his expert opinions, including but not limited to the hand-written draft of Mr. Gilman's expert report; and (2) order Mr. Gilman to reappear for his deposition and answer questions regarding his communications with counsel pertaining to his expert report and opinions. DATED this 6th day of January, 2006. SNELL & WILMER L.L.P. By s/ Joseph G. Adams John J. Bouma James R. Condo Patricia Lee Refo Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Kirkland & Ellis LATHAM & WATKINS By s/ David S. Foster David S. Foster Sears Tower, Suite 5800 Chicago, Illinois 60606 Attorneys for GTCR Defendants -andDon P. Martin Quarles & Brady Streich Lang, LLP Two North Central Phoenix, Arizona 85004-2391 Attorneys for GTCR Defendants RONAN & FIRESTONE, P.L.C. By s/ Merrick B. Firestone Merrick B. Firestone 649 North Second Avenue Phoenix, Arizona 85003 Attorneys for Michael Makings
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on January 6, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Leo R. Beus Richard R. Thomas Scot C. Stirling Beus Gilbert, PLLC 4800 North Scottsdale Road Scottsdale, AZ 85251 Attorneys for Plaintiffs Steven J. Brown Steve Brown & Associates, L.L.C. 1440 E. Missouri, Suite 185 Phoenix, AZ 85014-2412 Attorneys for Plaintiff Diane Mann, as Trustee for the Estate of LeapSource, Inc. Foster Robberson Richard A. Halloran Lewis and Roca LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for David L. Eaton and AEG Partners LLC s/ Joseph G. Adams

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1768760.3

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