It has been more than one year since the case Luminara Worldwide, LLC v. RAZ Imports, Inc., 2016 WL 6774231, 2016 U.S. LEXIS 158183, (D. Minn. Nov. 15, 2016) became a popular topic for the defense bar. As a brief recap, the issue before the district court in Luminara was whether the attorney-client privilege protected the preparation of an employee/expert designated pursuant to Fed. R. Civ. P. 26(a)(2)(C). The district court held that the attorney-client privilege did not apply to a nonreporting employee/expert. The court reasoned that, although the 2010 amendments to Rule 26 provide explicit protections for retained experts designated pursuant to Fed. R. Civ. P. 26(a)(2)(B), the 2010 amendments are silent as to whether these protections extend to nonretained experts designated pursuant to Fed. R. Civ. P. 26(a)(2)(C). Further, the court noted that the advisory committee notes for the 2010 amendments did not indicate that the drafters intended to change an existing precedent regarding privilege waiver of non-reporting experts that existed prior to the 2010 amendments.
In addition, the court held that the party who designated the non-retained expert had to produce every document the employee-expert “generated, saw, read, reviewed, and/or reflected upon,” not just the documents expert actually relied upon. In doing so, the court interpreted the term “considered” broadly, concluding that “the scope of waiver is not limited by subjective questions or whether the expert actually relied on or used the documents and information to which he was exposed in crafting his opinion. What matters is simply that he was exposed to those materials in the first place.” The court noted that “the purpose of expert discovery is to discover not just the information that the expert used in reaching his conclusions but also what information he ignored or failed to properly incorporate into his analysis.”
For good reason, the holding in Luminara resulted in a knee-jerk reaction amongst corporate attorneys who frequently rely on non-retained, employee experts in litigation. The thought that prep work with these experts will be freely and broadly discoverable is a scary proposition. Notably, only one court has cited Luminara in 18 months since opinion was made public. See Karum Holdings LLC v. Lowe’s Companies, Inc., 15 C 380, 2017 WL 5593318, at *4 (N.D. Ill. Nov. 21, 2017). In Karum, the defendant moved to exclude the testimony of the plaintiff’s non-retained expert – the company’s chief executive officer, asserting that the plaintiff’s disclosure was inadequate pursuant to Rule 26. Id. at *2-4. Citing Luminara the defendant argued in the alternative that, even if the plaintiff’s expert was disclosed as an expert, it would be permitted to discover the communications between the plaintiff and its expert. Id. at 4. The court held that the plaintiff’s expert would be excluded from testifying, reasoning that the plaintiff failed to adequately disclosure the expert. Id. at 6Specifically, the court held that the plaintiff’s failure to disclose its employee-expert was not harmless or justified and, therefore, prejudiced the defendant. Id. at 4. Part of the court’s decision in determining that the plaintiff’s failure to designate its expert was not harmless was that the holding in Luminara would have entitled the defendant to obtain additional information concerning the plaintiff’s employee-expert, including communications between the employee-expert and the plaintiff’s counsel. Id.
Prior to Karum, there were no reported cases in which a court addressed Luminara in the year since the opinion was made available. Thus, although it appeared that Luminara might fade into obscurity, the Karum opinion evidences that the holding in Luminara is not dead yet. Thus, it is still important to be mindful that communications between non-retained, employee experts and attorneys may not be protected by the attorney/client privilege and, therefore, are discoverable.
