*1 Plaintiff Matrix North American Construction, Inc. (“Matrix”) and Defendant PRO-TEC Coating Company (“PRO-TEC”) both allege the other party breached the terms of their Construction Agreement. PRO-TEC's counsel retained Berkeley Research Group (“BRG”) in April 2019 to “analyze the issues that were occurring on the project regarding cost and schedule” (Doc. 115-1 at 5). Brad Wolf and Richard Easler, employees of BRG, were later named as PRO-TEC's only testifying experts in the pending litigation (Doc. 118-1 at 10 n.2). Matrix moves to compel certain materials and associated testimony related to BRG's services provided prior to January 2020, the filing date of this suit (Doc. 118-1). PRO-TEC contends the discovery at issue is privileged because it constitutes a draft report, relates to attorney-client communications, and is protected under the work-product doctrine. Following a Zoom Hearing and exchange of letters, this Court ordered the documents to be produced for in-camera review (Doc. 111).

The disputed materials and supporting testimony involve the interplay of Federal Civil Rules 26(a)(2) and 26(b)(4). Federal Civil Rule 26(a)(2)(B) requires BRG to produce written reports containing “all opinions [they] will express and the basis and reasons” for those opinions, and to disclose “the facts or data considered ... in forming these opinions.” Promulgated in 2010 as Amendments to Rule 26, Federal Civil Rules 26(b)(4)(B) and (C) narrow the formerly expansive scope of expert discovery. Federal Civil Rule 26(b)(4)(B) protects drafts of any expert report BRG produces. Federal Civil Rule 26(b)(4)(C) generally protects communications between BRG, as an expert witness, and PRO-TEC's counsel. PRO-TEC emphasizes -- perhaps too heavily -- the impact of these protections.

PRO-TEC first argues the requested discovery constitutes protected draft reports and opinions. Matrix challenges whether this material should be considered a draft report at all. Materials and reports are “drafts” when “made with the purpose of [being incorporated] into the eventual draft.” In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prod. Liab. Litig., 2021 WL 2280657, at *5 (S.D. Ohio 2021) (quotations omitted). Matrix seeks discovery of forty-four documents, thirty of which are PowerPoint presentations (Doc. 113 at 2–4). The remaining fourteen materials are spreadsheets and schedules containing no information as to purpose or recipient, and a single document containing BRG's notes, similarly provided without context (id.).

PRO-TEC provides no deposition citation, and this Court cannot find a statement from BRG's consultants, that their PowerPoints, spreadsheets, schedules, or internal notes were prepared with the purpose of eventual incorporation into a final report. In re Davol, Inc., 2021 WL 2280657, at *5. PRO-TEC Senior Executive Christine Breves testified that when BRG was retained to “track the information,” it was uncertain whether any claims against Matrix would be pursued (118-2 at 16). PRO-TEC fails to indicate at what point BRG's information was sought for the purpose of litigation against Matrix, much less for the purpose of an expert report. In fact, when Matrix questioned Easler as to when he prepared any findings of preliminary reviews, PRO-TEC objected and did not allow him to answer (Doc. 115-1 at 43–44).

*2 Although the 2010 Amendments protect draft reports, they do not suddenly shield all deposition-discovery. Matrix remains entitled to all the facts and data BRG considered in forming its opinions. Federal Civil Rule 26(a)(2)(b). See Advisory Comm. Notes to 2010 Amendments (“The disclosure obligation extends to any facts or data “considered” by the expert in forming the opinions to be expressed, not only those relied upon by the expert”). In “dual-hat expert” cases such as this, “the term ‘considered’ should be construed expansively in favor of the party seeking discovery and ambiguity should be resolved in favor of discovery.” In re Davol, Inc., 2021 WL 2280657 at *4. See also Euclid Chem. Co. v. Vector Corrosion Techs., Inc., 2007 WL 1560277, at *4 (N.D. Ohio 2007) (finding that the term “ ‘considered’ includes anything received, reviewed, read, or authored by the expert, before or in connection with the forming of his opinion, if the subject matter relates to the facts or opinions expressed”). Significantly, the party resisting disclosure bears the burden of showing that an expert did not consider certain documents in forming their opinions. Coda Dev. S.R.O. v. Goodyear Tire & Rubber Co., 2020 WL 8675391, at *3 (N.D. Ohio 2020) (citations omitted). PRO-TEC fails to carry this burden.

PRO-TEC further argues BRG's materials are protected work product because they were created “in coordination with and at the direction of counsel” (Doc. 118-1 at 10). PRO-TEC relies on Acosta v. Wilmington Trust, 2019 WL 329592 (N.D. Ohio 2019), arguing that case controls because the documents at issue similarly related to prelitigation consultant work performed by the testifying expert (Doc. 118-1 at 20). However, Acosta dealt with documents that were “drafts of [the expert's] previous opinions.” 2019 WL 329592 at *2. As discussed above, no such finding is supported here.

Characterizing BRG's materials as mental impressions does not automatically transform the materials into work product protected from discovery. See Wenk v. O'Reilly, 2014 WL 1121920, at *4 (S.D. Ohio 2014). Again, the purpose of the 2010 Amendments was to specifically protect expert opinion work product -- such as attorney mental impressions, conclusions, opinions, or legal theories -- from discovery. Republic of Ecuador v. Mackway, 742 F.3d 860, 870 (9th Cir. 2014). The purpose was not to shield the expert's reasoning process from discovery. Wenk, 2014 WL 1121920 at *6. Here, the initial email introducing Rich Easler and Brad Wolf to the project for “claims preparation” was between PRO-TEC and BRG -- noticeably missing from that thread is PRO-TEC's counsel (Doc. 113-1 at 2). Although that email is not subject to Matrix's Motion, it demonstrates that PRO-TEC's counsel was not yet part of litigation preparation.

PRO-TEC's documents submitted for in-camera review are not particularly helpful in determining whether the communication constituted litigation strategy, as PRO-TEC contends (Doc. 118-1 at 20). Disputed exhibits 42 and 43 are email exchanges not involving counsel at all, and the remaining emails (exhibits 45-47) are correspondences that do not contain substantive communication. The first interaction involving PRO-TEC's counsel is an email dated June 13, 2019, in which PRO-TEC inquires about potential claims against another party (Doc. 113-6). There is no mention of Matrix in this email or in any of the other provided emails that include PRO-TEC's counsel.

PRO-TEC also fails to show the disputed presentations (exhibits 3, 5, 8–19, 24–27, 29–32, 35–41, 44), spreadsheets (exhibits 48–49), and schedules (exhibits 50–55) were created in coordination with counsel regarding the current suit. BRG was hired by PRO-TEC as a consultant to analyze the cost and scheduling issues -- nothing indicates the materials BRG prepared in 2019 were made with counsel's purview of litigation. Furthermore, Federal Civil Rule 26(b)(4) still allows for discovery of “communications the expert had with anyone other than the party's counsel about the opinions expressed,” and PRO-TEC fails to show how these materials were communicated, to whom they were communicated, and when they were communicated. Advisory Comm. Notes to 2010 Amendments. Finally, disputed exhibit 23 contains BRG's notes that PRO-TEC again fails to show was made at the direction of counsel, or even communicated to counsel.

*3 PRO-TEC fails to demonstrate the discovery in dispute is protected. The Motion to Compel (Doc. 118) is granted. PRO-TEC shall provide Matrix with the documents subject to the Motion, previously filed under seal (Docs. 113–15).

IT IS SO ORDERED.