United States District Court, S.D. Mississippi, Southern Division
UNITED STATES OF AMERICA ex rel. CORI RIGSBY and KERRI RIGSBY RELATORS/COUNTER-DEFENDANTS
STATE FARM FIRE AND CASUALTY COMPANY DEFENDANT/COUNTER-CLAIMANT
ORDER GRANTING IN PART MOTION TO COMPEL
H. WALKER UNITED STATES MAGISTRATE JUDGE.
the Court is the Relators' motion to compel production of
an unredacted version of A.J. Garretson's report. Doc.
. A.J. Garretson is a forensic examiner whose company,
Garretson Consulting, Inc., provides consulting services
related to forensic data recovery. During 2006 and 2007,
prior to the unsealing of the Relators' qui tam
action, State Farm Fire and Casualty Company hired Garretson
Consulting to conduct an internal investigation. Garretson
Consulting imaged State Farm computers assigned to the
Rigsbys, as well as computers owned by State Farm that were
not assigned to the Rigsbys. The findings and results of this
investigation were detailed in the Garretson Report dated
January 24, 2007.
support of their counterclaim, State Farm has designated
Garretson as a non-reporting expert witness pursuant to
Federal Rule of Civil Procedure 26(a)(2)(C). Hence, it was
not required to produce an expert report from Garretson as
part of its expert disclosures. However, in this case, there
is a report drafted by Garretson, which he created as a
result of his investigation done in anticipation of
litigation. Although the investigative report is not an
“expert report” in the technical legal sense of
the term, the document provides insight into the facts and
circumstances surrounding Garretson's forensic
investigation of State Farm's computers. According to
State Farm, such background information includes directions
Garretson received from State Farm's attorneys.
discovery, the Relators requested production of documents
concerning “the Rigsbys' alleged improper access or
misuse of State Farm's computer systems, including
forensic data obtained from examination of the State Farm
laptops assigned to the Rigsbys.” Doc. [1533-1] at 6.
In response to this discovery request, State Farm produced
the Garretson Report, but did so with several key redactions.
See Doc. . Some redactions were done because
State Farm deemed the information irrelevant. State Farm
redacted other passages based on the work product doctrine.
State Farm argues that the latter information would reveal
the mental impressions and trial strategy of State Farm's
attorneys. The Relators filed the instant motion to compel
arguing that they are entitled to a complete, unredacted
version of the Garretson Report. Relators contend that State
Farm waived all attorney client privileges and work product
protections by virtue of designating Garretson as a
respect to State Farm's relevancy argument, the Court
finds State Farm should produce the Garretson Report without
relevancy redactions. Although a party is under no obligation
to produce documents not relevant to the subject litigation,
it is not the practice of this Court to allow unilateral
redactions of allegedly irrelevant information contained
within otherwise discoverable documents. See Bartholomew
v. Avalon Capital Grp., 278 F.R.D. 441, 451-52 (D.Minn.
2011); Rodriguez-Ocasio v. Midland Credit Mgm't,
No 17-3630(ES)(MAH), 2019 WL 3821769, at *2 (D.N.J. July 23,
2019). State Farm offers no special circumstances or
compelling reason to permit relevancy redactions contained in
the Garretson Report.
Relators also request an order compelling State Farm to
produce portions of the report that State Farm redacted on
the basis of the work product doctrine. State Farm has
designated Garretson as a non-reporting or
“hybrid” fact and expert witness. State Farm
asserts that it intends to offer Garretson's testimony
only as to costs incurred as a result of the Rigsbys'
unauthorized use and access of State Farm's computers.
According to State Farm, Garretson is not providing opinion
testimony regarding the conclusions in Garretson's
investigative report; therefore, State Farm should not be
forced to reveal attorney work product contained in the
“purpose of the expert disclosure rule is to provide
opposing parties reasonable opportunity to prepare for
effective cross examination and perhaps arrange for expert
testimony from other witnesses.” Rembrandt Vision
Techs., L.P. v. Johnson & Johnson Vision Care, Inc.,
725 F.3d 1377, 1381 (Fed. Cir. 2013) (internal quotation
marks omitted). Consistent with this purpose, courts look to
what a party actually disclosed, not what the party intended
to disclose. Cooper v. Meritor, Inc., NO.
4:16-CV-52-DMB-JMV, 2018 WL 2223325, at *7 (N.D.Miss. May 15,
2018). In its expert disclosure, State Farm indicated that
“Mr. Garretson is expected to testify in the area of
computer forensics concerning the Rigsbys' use of their
computers and their access to State Farm's computer
system, and that the Rigsbys' performed unauthorized acts
using their State Farm issued computers....” Doc.
[1507-2] at 4. Thus, contrary to State Farm's contention,
the scope of Garretson's anticipated testimony addresses
the contents and conclusions of the report and not merely the
issue of costs.
Farm also argues that the redacted material would disclose
“detailed information concerning the searches”
done at the instruction of State Farm's attorneys. Doc.
 at 7. Thus, the material should be withheld because
“it would reveal the mental impressions and legal
strategy of the attorneys who directed the search.”
Id. The Relators counter that State Farm waived the
work product protection when it designated Garretson as a
non-reporting expert. Both parties cite to the 2010
amendments to Rule 26 to buttress their positions. Neither
party has cited to Fifth Circuit authority or to persuasive
authority from within the district addressing specifically
the 2010 amendments and their effect on privilege as it
relates to non-reporting experts.
Farm designated Garretson as a non-reporting expert under
Rule 26(a)(2)(C). This particular subsection “addresses
the disclosure of expert witnesses who were involved in the
events leading up to litigation and may testify both as an
expert and as a fact witness.” LaShip, L.L.C. v.
Hayward Baker, Inc., 680 Fed. App'x 317, 324 (5th
Cir. 2017). A non-reporting expert's testimony under Rule
26(a)(2)(C) “arises not from his enlistment as an
expert, but, rather, from his ground-level involvement in the
events giving rise to the litigation.” DiSalvatore
v. Foretravel, Inc., No. 9:14-cv-150-KFG, 2016 WL
7742996, at *2 (E.D.Tex. May 20, 2016). In 2010, Rule 26 was
“amended to address concerns about expert
discovery.” Fed.R.Civ.P. 26, advisory committee's
note to 2010 amendment. The amendment provided work product
protection for drafts of expert reports or disclosures and
protection for communications between the party's
attorney and any witness required to provide a report under
Rule 26(a)(2)(B). Id.; see also United States v.
Sierra Pacific Industries, No. CIV S-09-2445 KJM EFB,
2011 WL 2119078, at *2 (E.D.Calif. May 26, 2011). As
explained by the court in Sierra Pacific,
“[u]nder the old rule, there was little or no
protection for what counsel said or provided to a designated
expert and such communications were generally
discoverable.” Sierra Pacific Industries, 2011
WL 2119078, at *1. Courts in the Southern District of
Mississippi followed this general rule as well. See TV-3
Inc. v. Royal Ins. Co. of Am., 193 F.R.D. 490, 491
(S.D.Miss. 2000) (Rule 26 “allows discovery of all
communications between counsel and a retained testifying
expert, even if those communications contain
attorneys' mental impressions or trial strategy or is
otherwise protected by the work privilege.”
(emphasis in the original)).
the amended rule, some communications no longer waive work
product protection, but the rule distinguishes between
experts who are required to provide reports and experts who
are not. Sierra Pacific Industries, 2011 WL 2119078,
at *1. The amended Rule 26 protects communications between a
party's attorney and witnesses required to provide
reports, “[b]ut the rule is silent as to communications
between a party's attorney and non-reporting
experts.” Id. at *5. In sum, “the
amended rule neither created a protection for communications
between counsel and non-reporting expert witnesses, nor
abrogated any existing protections for such
communications.” Id. at *7. Both prior to and
after the 2010 amendments, the designation of a non-reporting
expert generally waived applicable privileges for
communications between a party's attorney and the
non-reporting expert. See Luminara Worldwide, LLC v.
Liown Electronics Co. Ltd., No. 14-3103 (SRN/FLN), 2016
WL 6914995, at *6 (D.Minn. May 18, 2016).
courts have explained this different treatment for witnesses
required to furnish a report versus non-reporting experts,
who are both fact and expert witnesses. Specifically, the
distinction exists because of difficulties separating a
hybrid witness' sense impressions from his expert
opinions and because of a concern for “attorney-caused
bias”. See City of Mankato, Minnesota v.
Kimberly-Clark Corp., No. 15-2010 (JRT/TNL), 2019 WL
4897191, at *11 (D.Minn. May 28, 2019); Garcia v.
Patton, No. 14-cv-01568-RM-MJW, 2015 WL 13613521, at *4;
PacificCorp v. Northwest Pipeline GP, 879 F.Supp.2d
1171, 1213 (D.Or. 2012); Sierra Pacific, 2011 WL
2119078, at *6-7, 10. However, courts have cautioned against
finding an automatic waiver of the work product protection
based merely on a party's designation as a non- reporting
expert pursuant to Rule 26(a)(2)(C). In determining the scope
of any waiver, the focus of inquiry is on what information or
documents the Rule 26(a)(2)(C) expert has considered in
connection with his proposed testimony. See Pipeline
Productions, Inc. v. Madison Companies, LLC, No.
15-4890-KHV-ADM, 2019 WL 3973955, at *7 (D.Kan. Aug. 22,
2019); City of Wyoming, Minnesota v. Procter & Gamble
Co., No. 15-cv-2101 (JRT/TNL), 2019 WL 245607, at *5-6
(D.Minn. Jan. 17, 2019); Sierra Pacific, 2011 WL
2119078, at *10.
Farm designated Garretson to testify in the area of computer
forensics regarding the Rigsbys' use of State Farm issued
computers and access to State Farm's computer system. The
Court concludes that State Farm's Rule 26(a)(2)(C)
disclosure waived the work product protection for certain
information considered by Garretson in compiling his report,
which would include counsel's instructions concerning
searches of computers assigned to the Rigsbys and searches of
State Farm's computer system as it relates to the Rigsbys
access to the computer system. Based on the foregoing, the
motion is granted to the extent State Farm is compelled to
produce a copy of the Garretson Report, removing any work
product redactions concerning the Rigsbys and their use of or
access to State Farm's computers and computer system.
Garretson has not been designated to testify regarding State
Farm computers he analyzed that were not assigned to the
Rigsbys. Thus, the motion to compel is denied in part,
because the work product protection remains valid for any
instructions from State Farm's counsel to Garretson
regarding searches unrelated to the Rigsbys' use of or
access to State Farm's computers or computer system.
THEREFORE ORDERED AND ADJUDGED that the Relators' 
Motion to Compel is GRANTED in part and DENIED in part,