In this case, the plaintiff, Regional Airport Authority of Louisville and Jefferson County (“the Authority”), brought an action against LFG, LLC and Navistar (collectively “Defendants”) under the Comprehensive Environment Response, Compensation and Liability Act for the cost of remediation of property previously owned by Defendants. During the case, the Authority challenged the District Court’s ruling affirming the magistrate judge’s order compelling the production of certain documents. The documents at issue fell into two categories:
- Allegedly privileged communications between the Authority’s attorneys and certain outside parties
- Attorney work product given to the Authority’s testifying experts
Under the first category of documents, the Sixth Circuit upheld the magistrate’s ruling. The court found that because the communications at issue between the Authority’s attorneys and third parties were not made for the purpose of obtaining legal advice, the attorney-client privilege could not attach, even if the third parties were considered agents of the Authority.
As for the second category of documents, the Sixth Circuit identified two lines of cases regarding protection of work product associated with experts. The first line of cases holds that attorney work product is not discoverable merely because it has been shared with a testifying expert. The second line of cases holds that Rule 26 of the Federal Rules of Civil Procedure creates a bright-line rule requiring disclosure of all information provided to testifying experts, including opinion work product.
The Sixth Circuit noted that the majority of courts that have adopted the rule from the second line of cases rely mainly on statements in the Federal Rules’ Advisory Committee Notes, which support the theory that Rule 26 creates a bright-line rule requiring disclosure of all information provided to testifying experts. The Sixth Circuit found such reasoning persuasive and thus upheld the lower court’s order requiring the Authority to disclose all information, including opinion work product, given to testifying experts.