A Florida federal magistrate was asked last week to rule on an order requiring production of pre-litigation service agreement relating to the plaintiffs’ expert after in camera review.
The defendant in the case made a Motion to Compel the Plaintiffs to Respond to its Initial Discovery (“Motion”).
The district court held a hearing on the Motion and then entered an order on the motion and required that Plaintiffs submit for in camera review the agreement between Plaintiffs and a Miami-area law firm concerning the services of a insurance loss consultant who employed as a pre-litigation consultant, but would also serve as an expert witness at trial testifying on damages.
Plaintiffs’ counsel submitted the agreement for in camera review to chambers, as required.
U.S. Magistrate Judge William Matthewman said that he had carefully reviewed the one-page document.
In open court, Plaintiffs’ counsel objected to producing the document on the basis of attorney-client and/or work-product privilege. He explained that the agreement at issue was between Plaintiffs and their law firm for pre-litigation services. According to Plaintiffs’ counsel, the agreement provided the expert, who was a loss consultant and not a public adjuster, employed by the law firm, with a 10% pre-litigation fee for his services.
Plaintiffs’ counsel argued that the expert had already fulfilled his contractual obligations. Plaintiffs’ counsel further explained that Plaintiffs would rely on the expert as an expert witness at trial and that he will also testify regarding damages.
Judge Matthewman stated in his opinion that he found that the agreement here was relevant pursuant to Rule 26(b)(1). The agreement specified the financial remuneration to Plaintiffs’ expert witness. The judge explained that the law is clear that the amount of money an expert witness has been paid or will be paid is relevant to the fact-finder’s credibility determination.
Further, Rule 26(a)(2)(B)(iv) explicitly requires that expert witness reports include a “statement of the compensation to be paid for the study and testimony in the case, and case law establishes the relevance of an expert witness’s compensation. In light of Plaintiffs’ counsel’s representation that they planned on calling the expert at trial, and in light of counsel’s representation that the agreement provided the expert with 10% of Plaintiffs’ proceeds of the case, the agreement was clearly relevant.
Second, Judge Matthewman noted that Plaintiffs did not raise any privilege objections in response to Defendant’s Request for Production, which sought “[a]ll documents, by from and/or to any public adjuster, loss consultant, roofer, engineer, or appraiser concerning the subject matter of the Complaint.” In addition, Plaintiffs failed to produce a privilege log. As a result, the judge held that all objections were waived pursuant to Federal Rule of Civil Procedure 33(b)(4) and Local Rule 26.1(e).
Next, even if the attorney-client privilege did initially protect the agreement and hadn’t been waived by Plaintiffs’ failure to properly object to discovery and failure to produce a privilege log, Judge Matthewman said that Plaintiffs would have waived any privilege by putting the expert‘s credibility at issue in the case. Again, a factor to consider in determining an expert witness’s credibility is the amount that the expert is being paid by the party who retained him or her. The judge emphasized that Plaintiffs’ counsel represented in open court that they intended to call the expert as an expert witness at trial.
Finally, Judge Matthewman wrote that “retainer agreements are not treated as protected work product in federal court,” citing an earlier case from the Southern District.
Nonetheless, even if the expert’s retainer agreement were protected by the work-product doctrine, “work product prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship.” Here, the judge found that Defendant made a sufficient showing of need and hardship.
Based on the judge’s reasoning, he ordered Plaintiffs to produce the expert’s retainer agreement they submitted for in camera review to Defendant.