I. BACKGROUND

The Technology Park X Limited Partnership (“Tech Park X”) is a limited partnership, created by the Tech Park X Limited Partnership Agreement (“LP Agreement”) in which the Traverses hold a 38 percent share, and defendants The Gutierrez Company (“TGC”), Arturo J. Gutierrez (“Arturo”), and Arthur J. Gutierrez (“Arthur”), among others, hold smaller stakes.[3] Amended Complaint ¶ 12. TGC serves as the General Partner of Tech Park X and is responsible for the management of Tech Park X. Id. at ¶ 22.

In this action, the Plaintiffs allege that the Defendants improperly inflated Tech Park X's operating expenses and maintenance expenses through inflated invoices. Id. at ¶ 27. They also allege that the Defendants caused Tech Park X to enter into contracts that were in excess of reasonable and competitive market rates. Id. In addition, the Plaintiffs claim that the Defendants caused Tech Park X to incur costs for a water main break caused by the Gutierrez Construction Co., Inc.’s (“GCCI”) negligence. Id. Plaintiffs claim that the Defendants concealed these activities from Plaintiffs, withheld information from Plaintiffs, and misappropriated Tech Park X funds. Id.

The Amended Complaint also alleges that cafeteria renovations were “overcharged”, certain drywall costs were too expensive, and fitness center renovations cost “hundreds of thousands of dollars more” than “usual market rates.” Id. at ¶¶ 37-39. Plaintiffs claim to have identified $1.6 million in construction overcharges. Id. at ¶ 42.

II. ANALYSIS

Defendants argue that the Plaintiffs have failed to produce certain documents that the Plaintiffs’ expert witnesses considered in forming their opinions. Docket No. 275 at 7-20. Plaintiffs, on the other hand, argue that they have produced everything that they are required to disclose pursuant to Rule 26 of the Federal Rules of Civil Procedure. See Docket No. 282 at 6-18.

A. Legal Standard

A party must disclose all materials, including work product, considered by an expert witness in forming an opinion. See Fed. R. Civ. P. 26(b)(4)(C)(ii); Clark v. Edison, No. 09-40040-FDS, 2010 WL 3245428, at *3 (D. Mass. Aug. 16, 2010); Suskind v. Home Depot Corp., No. CIV. A. 99-10575-NG, 2001 WL 92183, at *4 (D. Mass. Jan. 2, 2001). “Courts have interpreted the phrase ‘considered by an expert witness’ to require a broader disclosure than simply those documents an expert relied upon in formulating an opinion.” Clark, 2010 WL 3245428, at *3. That is because “[a]sking a court to determine whether an expert actually relied on work product documents involves exploration of the expert's mental processes and risks creation of an unwieldy rule that would not provide certainty as to the protected status of work product materials.” Lamonds v. General Motors Corp., 180 F.R.D. 302, 306 (W.D. Va. 1998).

*2 However, the caselaw is not uniform regarding what constitutes consideration by an expert. For example, some courts have held that a party must disclose all information supplied to the expert. See, e.g., In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) (“fundamental fairness requires disclosure of all information supplied to a testifying expert in connection with his testimony”) (emphasis added). Other courts have held that documents supplied to but not read, reviewed, or considered by the expert need not be produced. See, e.g., Amway Corp. v. Procter & Gamble Co., No. 98 Civ. 726, 2001 WL 1877268, at *1 (W.D. Mich. Apr. 17, 2001). Those cases finding that an expert must actually read or review a document to trigger the disclosure requirements of Rule 26(a)(2) “make clear that the burden of showing that the expert did not read or review a document lies with the party resisting discovery.” United States Fidelity & Guar. Co. v. Braspetro Oil Servs., Co., No. 97 CIV. 6124JGKTHK, 2002 WL 15652, at *7 (S.D.N.Y. Jan. 7, 2002). This Court agrees with those courts that have found that the expert must have at least read or reviewed a document to trigger the disclosure requirement.

B. The Reenstierna Report

Mark S. Reenstierna, a Massachusetts Certified General Real Estate Appraiser, submitted a “Review of a 2014 appraisal of [600 Technology Park Drive, Billerica, Massachusetts]” (the “Reenstierna Report”). Docket No. 275-2 at 2. He analyzed “the appropriateness of the reported comparable expense properties.” Id. Defendants argue that the Reenstierna Report should be stricken because it fails to sufficiently disclose the facts or data that Mr. Reenstierna considered in rendering his opinion or the basis and reasons for his opinion. Docket No. 275 at 8. In the alternative, the Defendants request that the Court issue an order compelling Plaintiffs to produce a complete set of the reports, data, and internal files Mr. Reenstierna read or reviewed in preparing his report. Id. at 9-10.

Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires that a testifying expert provide a written report containing, among other things, “the facts or data considered by the witness in forming [his opinions].” Fed. R. Civ. P. 26(a)(2)(B)(ii). In his report, Mr. Reenstierna stated that he “reviewed the above referenced appraisal prepared by James J. Marotta, MAI and also reviewed local and regional market expense reports, as well as data from our own files regarding property expenses for Suburban Office Buildings.” Docket No. 275-2 at 2. He also stated that “we have researched published data as well as information from our appraisal files.” Id. at 4. “We have in our files expense information from other office properties in Greater Boston where we have obtained actual expense information from the owners.” Id.

The Defendants are correct that Mr. Reenstierna's descriptions of the facts or data considered by him in forming his opinion are too vague to allow the Defendants to determine what exactly he considered. In response to the motion, Plaintiffs represent that they have produced to the Defendants all documents that Mr. Reenstierna reviewed. Docket No. 282 at 7-8; Affidavit of Mark Reenstierna in Opposition to Defendants’ Motion to Compel Expert Materials (Docket No. 284) (“Reenstierna Aff.”) at ¶ 3 (“Exhibit F to the Motion consists of all the materials I reviewed in forming the opinions expressed in my expert report.”). However, a review of the materials produced does not appear to support this assertion.

First, the Plaintiffs represent that the first three pages of Exhibit F are Mr. Reenstierna's own internal files referenced his report. Docket No. 282 at 7. However, those three pages have a date of January 29, 2020, 13 days after Mr. Reenstierna issued his report. Docket No. 275-6 at 2-4. At the April 9 hearing, Plaintiffs’ counsel represented that this date reflects the date that the document was printed to produce to the Defendants, not the date it was created. In any event, it appears likely that the three-page document is not Mr. Reenstierna's internal files but rather a compilation of information that existed in different locations in Mr. Reenstierna's files.

*3 In addition, even if this was the entirety of the internal files considered by Mr. Reenstierna, it also appears that the documents are incomplete. While the Reenstierna Report suggests that Mr. Reenstierna reviewed expense information from other properties in Greater Boston, see Docket No. 275-2 at 4, the January 29, 2020 document contains no information identifying any such properties, including the name of the property, the tenants, or the address. At oral argument, counsel acknowledged that the document was redacted to remove the identity of Mr. Reenstierna's clients, which he did not want to disclose because it could be damaging to his relationship with his clients. Such information, however, is necessary for the Defendants and their own experts to evaluate and probe Mr. Reenstierna's opinions. Accordingly, the Plaintiffs shall produce to the Defendants the client and property information that was removed from the document.

In addition, in light of the foregoing, I order the Plaintiffs to provide a further affidavit from Mr. Reenstierna listing, in detail, the facts and data he reviewed or considered in forming his opinions. He shall also explain the nature of Exhibit F, including what the document is, when was it created, for what purpose, the sources of the underlying information, and what information was redacted. This affidavit shall be filed within two weeks. I deny without prejudice the motion to strike pending receipt of this affidavit.

C. The Stohlman Report

In October 2016, counsel for the Plaintiffs retained Matthew Stohlman, a certified forensic accountant. Affidavit of Matthew Stohlman in Opposition to Defendants’ Motion to Compel Expert Materials (Docket No. 283) (“Stohlman Aff.”) at ¶¶ 1, 3. Specifically, Mr. Stohlman was asked to reconcile the financial statements and ledgers of Tech Park X to records of payment receipts and outflows. Id. at ¶ 3. According to Mr. Stohlman, his consulting work was completed in substance by around January 2017. Id. at ¶ 4. He prepared schedules of reconciliations of due to and due from accounts but did not otherwise prepare a formal written report of his findings. Id.

In November 2019, counsel for Plaintiffs requested that Mr. Stohlman submit an expert report in this case on two subjects: (1) a calculation of management fee charges and (2) a description of Tech Park X's general ledger entries. Id. at ¶ 5. He subsequently issued an expert report (the “Stohlman Report”). Docket No. 275-1. Mr. Stohlman provided the following opinions:

Docket No. 275-1 at 3. With respect to the second opinion, Mr. Stohlman stated that “[i]t required significant time, questions and discussions with Kevin Rodenberg and his staff to reconcile and understand the purpose and nature of these entries.” Id. at 4.

1. Documents Reflecting Mr. Stohlman's Discussions With Defendants And Mr. Stohlman's Time Spent Analyzing Tech Park X's Books And Records

Because Mr. Stohlman referenced his discussions with Defendants’ staff in opining that Tech Park X's general ledgers should be clearer, Defendants request that the Court order the Plaintiffs to produce all documents reflecting Mr. Stohlman's communications with the Defendants. Docket No. 275 at 11-12. In refusing to produce such documents, Plaintiffs appear to argue that Mr. Stohlman did not read or review any such documents in preparing his report. See Docket No. 282 at 8-13. However, Mr. Stohlman explicitly stated in his report that his analysis required “significant time, questions and discussions with Kevin Rodenberg and his staff to reconcile and understand the purpose and nature” of certain entries. Therefore, he must provide any documents reflecting those communications. See Clark, 2010 WL 3245428, at *3 (“A party must provide all materials than an expert creates, reviews, reads, or uses in connection with formulating an opinion, even if the expert does not utilize information from the materials.”).

*4 Similarly, Defendants request that the Court order Plaintiffs to produce all time entries, invoices, and timesheets for Mr. Stohlman and his staff. Docket No. 275 at 12. Plaintiffs appear to also claim that Mr. Stohlman did not rely on or consider those documents and, as such, they need not be produced. See generally Docket No. 282 at 8-13. However, one of the bases for Mr. Stohlman's opinion that the ledger entries were not clear was that “it required significant time” to reconcile the entries at issue. Docket No. 275-1 at 4. Thus, Mr. Stohlman appears to have considered, as facts or data, the amount of time he and his staff spent in reconciling the entries. Therefore, Mr. Stohlman must also produce all time entries, invoices, and time sheets for the time spent by him and his staff reconciling ledger entries.

2. Mr. Stohlman's Communications With Counsel

With respect to his opinion that management fees were overcharged, Mr. Stohlman stated that he was:

Docket No. 275-1 at 3-4. Defendants request all communications between Mr. Stohlman and Plaintiffs or Plaintiffs’ counsel concerning this assumption. Pursuant to Rule 26, any such communications are discoverable. See Fed. R. Civ. P. 26(b)(4)(C)(iii) (communications between a testifying expert and counsel are protected except to the extent the communications “identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.”). However, the Plaintiffs represent that no such documents exist because counsel and Mr. Stohlman discussed the assumption referred to in Mr. Stohlman's report in a telephone call and did not exchange any emails or written communication on the matter. Stohlman Aff. at ¶ 8; Affidavit of Jason Koral in Opposition to Defendants’ Motion to Compel Expert Materials (Docket No. 286) (“Koral Aff.”) at ¶¶ 7-8. At the April 9 hearing, Attorney Koral represented that Mr. Stohlman told him that he did not take notes regarding counsel's instruction regarding the assumption. Within two weeks, the Plaintiffs shall file a further affidavit from Mr. Stohlman verifying that he in fact did not take any notes regarding the assumption he was instructed to make.

3. Mr. Stohlman's Analysis Of Tech Park X's Books And Records

As to Mr. Stohlman's opinion concerning Tech Park X's general ledgers, Mr. Stohlman explains the basis of his opinion as follows:

Docket No. 275-1 at 4. Mr. Stohlman then explains that, as a result of that analysis, he concluded that Tech Park X's “general ledgers should include clearer descriptions for the entries so that a reader of the general ledgers has a better understanding of the recorded transactions.” Id. Defendants request that Plaintiffs be ordered to produce all documents regarding Mr. Stohlman's analysis, including but not limited to related work papers. Docket No. 275 at 14.

Despite Mr. Stohlman's explicit reference to the work he performed in 2017, see Docket No. 275-1 at 4, the Plaintiffs maintain that he did not rely or consider that work in rendering his opinion. Docket No. 282 at 8-13. They attempt to separate the work Stohlman performed in 2017 from the opinion rendered in 2019 and argue that because the Complaint does not accuse the Defendants of false accounting entries to cover up embezzlement, the work performed in 2017 is not relevant to this case or to Stohlman's opinion. Id. at 8-9, 12. They also argue that because that work was performed by Stohlman in his capacity as a consulting expert, it is protected from discovery as work product. Id. at 12-13.

*5 As discussed above, when experts serve as testifying witnesses, “the discovery rules generally require the materials reviewed or generated by them to be disclosed, regardless of whether the experts actually rely on those materials as the basis for their opinions.” SEC v. Reyes, No. C -6-04435, 2007 WL 963422, at *1 (N.D. Cal. 2007) (citations omitted). This disclosure requirement extends to documents that would otherwise be privileged. See Suskind v. Home Depot Corp., 2001 WL 92183, at *4.

While a single expert may serve as both a consulting expert and a testifying expert, the broader discovery rules for testifying expert materials apply “to everything except ‘materials generated or considered uniquely in the expert's role as consultant.’ ” Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416, 419-420 (N.D. Ill. 2011) (emphasis in original; citations omitted). In such cases, “the scope of the privilege must be narrowly construed against the expert's proponent, lest the privilege interfere with the goal of the disclosure requirements, which is to allow an adversary ‘to expose whatever weaknesses, unreliabilities, or biases might infect the opinions of testifying experts called by [an] adverse party.’ ” Reyes, 2007 WL 963422, at *2 (citation omitted). “Thus, ‘documents having no relation to the expert's role as [a witness] need not be produced but ... any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery.’ ” Id. (citations omitted).

An expert serving both as a consulting and testifying expert may assert privilege only as to materials that do not pertain to the subject matter on which he has submitted testimony. Id. The test is “whether the documents reviewed or generated by the expert could reasonably be viewed as germane to the subject matter on which the expert has offered an opinion.” Id. at *2, n. 2.[4]

The Plaintiffs attempt to minimize Mr. Stohlman's reference to his 2017 analysis as “a reference to how Mr. Stohlman first encountered the Tech Park X general ledgers in his consulting engagement.” Docket No. 282 at 12. However, Mr. Stohlman specifically referred to that analysis as the basis of one of his opinions. Docket No. 275-1 at 3-4. Therefore, the 2017 analysis could be reasonably viewed as germane to his opinion. To the extent that Mr. Stohlman's 2017 analysis of Tech Park X's books and records were protected by the work product doctrine or otherwise, any such protection was lost when he considered that information in forming his opinions. Accordingly, I find that Mr. Stohlman must produce all documents regarding his 2017 analysis of Tech Park X's books and records, including his work papers.

D. The Demiraj Report

*6 In 2017, Attorney Koral retained Agim Demiraj as a consulting expert in this matter. Declaration of Jason Koral in Opposition to Defendants’ Second Motion to Compel (Docket No. 236) (“Koral 11/22/19 Aff.”) at ¶ 2. Mr. Demiraj is a certified Professional Engineer and General Contractor, with additional professional certification in structural forensic engineering. Id. Mr. Demiraj prepared analysis of construction costs incurred in building and tenant improvement projects at Tech Park X. Id. at ¶ 3. In preparing those analyses, Mr. Demiraj used a widely-used construction cost estimating software product known as RS Means. Id.

In 2019, counsel for the Plaintiffs asked Mr. Demiraj to submit an expert witness report about Tech Park's alleged construction overcharges. Affidavit of Agim Demiraj in Opposition to Defendants’ Motion to Compel Expert Materials (Docket No. 285) (“Demiraj Aff.”) at ¶ 5. He submitted an expert report opining that Tech Park X incurred $1,643,998.00 in excess construction charges in the years 2012-2017. Docket No. 275-3 at 2-3.

According to Mr. Demiraj, his analysis “began with the spreadsheets he had done in 2017 and used them as drafts in updating [his] calculations.” Demiraj Aff. at ¶ 5. He also states that “[t]he updated final versions of the spreadsheets are attached as exhibits to my expert report.” Id. “Those exhibits are part and parcel of my report.” Id.

In addition, Mr. Demiraj avers that counsel did not supply him with the assumptions, facts, or data used in creating the exhibits to his report. Id. at ¶ 6. Rather, “the inputs consist of the project plan drawings and schedules of value provided by the Defendants and the RS Means data compilations,” which he gave to counsel for production to Defendants. Id.

Defendants now seek the spreadsheets that Mr. Demiraj prepared in 2017. Docket No. 275 at 16-20. Plaintiffs argue that the spreadsheets are not discoverable because, among other things, they constitute drafts of Mr. Demiraj's expert report. Docket No. 282 at 13-16. I agree.

Rule 26(b)(4)(B) protects drafts of expert reports “regardless of the form in which the draft is recorded.” Fed. R. Civ. P. 26(b)(4)(B). The Advisory Committee Notes to the rule explain that the protection for draft reports “applies regardless of the form in which the draft is recorded, whether written, electronic, or otherwise.” Fed. R. Civ. P. 26 Advisory Cmte. Notes, Subd. (b)(4) (2010). The Notes also state that “the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule.” Id.

In determining whether a document qualifies as a draft expert report, “the label attached to the underlying document is not necessarily determinative.” In re Nat'l Hockey League Players’ Concussion Injury Litig., No. 14-2551, 2017 WL 684444, at *1 (D. Minn. Feb. 21, 2017). Therefore, the determination of whether a document falls within the protection of Rule 26(b)(4)(B) is “highly fact-specific.” Id.

“A draft is ‘[a] preliminary sketch or rough form of a writing or document, from which the final or fair copy is made.’ ” Deangelis v. Corzine, No. 11 Civ. 7866, 2016 WL 93862, at *4 (S.D.N.Y. Jan. 7, 2016) (citing Oxford English Dictionary (2d ed. 1989); Webster's Third New International Dictionary Unabridged (2016)). Courts have found that the following factors weigh in favor of finding that an expert's underlying documents constitute drafts: evidence that the documents were in fact created for use in an expert report, that the expert anticipated that the document would form part of the report he was drafting, that the underlying information was in fact inserted in the draft report, and that the document applied to the expert's own development of the opinions presented in his report. In re Nat'l Hockey League Players’ Concussion Injury Litig., 2017 WL 684444, at *2 (citing cases).

*7 It is true, as the Defendants point out, that Mr. Demiraj could not have originally created the spreadsheets for use in his expert report or anticipated that they would form part of the report because he prepared them in 2017 and he was not asked to prepare an expert report until 2019. See Demiraj Aff. at ¶¶ 4, 5. Defendants seem to be suggesting that because Mr. Demiraj was initially hired as a consulting expert and only later became a testifying expert, his earlier work product, prepared when he was a consultant and which later served as a draft for developing his expert report, cannot constitute a draft. Docket No. 290 at 12. However, the spreadsheets were ultimately included in Mr. Demiraj's report and applied to his own development of the opinions presented in the report, namely that the Defendants’ overcharged construction costs in the amount of approximately $1.6 million. See, e.g., Davita Healthcare Partners, Inc. v. United States, 128 Fed. Cl. 584, 588 (Fed. Cl. 2016) (Rule 26(b)(4)(B)’s work product protection applies to expert's preliminary analyses of claims data and various damages scenarios).

Nor have the Defendants shown that they have a substantial need for the earlier spreadsheets. They now have the final versions of the spreadsheets, as well as Mr. Demiraj's opinions and the basis for such opinions. In addition, there is no indication that the Plaintiffs have not produced the facts and data considered by Mr. Demiraj in formulating his opinions, including in creating the spreadsheets. Therefore, they have not satisfactorily explained why they need the earlier versions of Mr. Demiraj's spreadsheets. Accordingly, I deny the Defendants’ request for the spreadsheets created by Mr. Demiraj in 2017.

III. ORDER

For the foregoing reasons, I grant in part and deny in part the Defendants’ motion to compel. Any documents or information compelled by this order shall be produced within two weeks.

Judge Casper referred the motion to the undersigned on February 19, 2020. Docket No. 276.

Citations to “Docket No. ___” are to documents appearing on the Court's electronic docket. They reference the docket number assigned by CM/ECF, and include pincites to the page numbers appearing in the top right corner of each page within the header appended by CM/ECF.

The Traverses are also limited partners in the Technology Park V Limited Partnership (“Tech Park V”). Declaration of Tobin R. Dozois, Controller for TGC (Docket No. 48-2) (“Dozois Aff.”) at ¶ 2.

Some courts have focused on the particular role ostensibly played by the expert when reviewing the documents in question. See Reyes, 2007 WL 963422, at *2, n. 2. However, I agree with those courts that have focused on the nature of the materials at issue. “This focus on the nature of the materials is more consistent with Rule 26(a)(2)(B), which identifies the formation of the expert's ‘opinions’ as the touchstone for disclosure.” Id. (emphasis omitted). In addition, “this rule is in accord with other decisions concerning the scope of waiver regarding the work-product privilege.” Id. (citation omitted). Finally, “this standard for disclosure is preferable because it emphasizes the concrete subject matter contained within the documents, rather than the artificial and illusory distinction of the ‘hat’ worn by the expert at any particular time.” Id. (citation omitted).