In In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, No. 00-1898, MDL No. 1358 (S.D.N.Y. June 28, 2013), the court held that, where a dual consulting/testifying witness considers factual data relating to issues upon which he will be offering opinions, the factual data is not privileged or protected from discovery. In this case, Wheatcraft was engaged by a party as both a consulting and as a testifying expert. During his deposition, to refresh his recollection, Wheatcraft reviewed a portion of a 45-page spreadsheet that he had prepared, which reflected summaries and criticisms of other experts’ opinions. The special master initially ruled that FRE 612, which allows a party access to materials used to refresh a witness’ recollection, trumped any work product protection, and the special master did not make a determination of whether the spreadsheet qualified as work product. The district court rejected the special master’s categorical application of FRE 612 and remanded for a determination of whether the spreadsheet qualified for work product protection. On remand, the special master found that the spreadsheet was prepared in a testimonial capacity and did not qualify for work product protection. The district court affirmed the ruling, on slightly different grounds, holding that the question is not what hat Wheatcraft was wearing when he created the spreadsheet, but instead whether he considered the spreadsheet as “facts or data” in connection with his testimony. The court explained that this does not conflict with the 2010 amendments to FRCP 26, which protect drafts of expert reports and communications between counsel and a testifying expert as work product. Citing the Advisory Committee’s Note, the court noted that the protection of communications with counsel “does not extend to an expert’s own development of the opinions to be presented; those are subject to probing in deposition or at trial.”