Meeting Agendas Between Non-Party Consultant and Counsel for Asbestos Friction Clients Not Privileged Appellate Court of Illinois, Fifth District, June 30, 2016
The plaintiffs’ law firm of Maune Raichle Hartley French & Mudd, LLC (Maune) subpoenaed documents from Exponent, Inc., a non-party in Maune’s asbestos litigation pending in Madison County, Illinois. At the request of Exponent, the circuit court held Exponent in friendly civil contempt for refusing to provide an unredacted version of certain documents requested in Maune’s subpoena. Exponent appealed this contempt order as well as the underlying discovery order. Exponent argued that the circuit court abused its discretion in requiring production of these documents, because they were not relevant and were protected by attorney work product and consultant work product privilege. The court vacated the contempt order and monetary sanction, and affirmed the underlying discovery order.
Exponent is a science and engineering consulting firm that conducts various studies regarding the effects of asbestos exposure. Some of its research is funded by companies regularly sued for asbestos exposure by the Maune firm, such as Ford. Ford has listed Exponent scientists as experts. This appeal involved redacted documents consisting of agendas from meetings held between Exponent and counsel for Exponent’s clients — Ford, Chrysler, and General Motors. After lengthy discovery procedures, including an in camera review and a motion to reconsider, the circuit court ordered Exponent to produce the unredacted version of these documents.
Regarding relevance, Maune argued these documents were relevant because Ford routinely used Exponent’s friction studies to argue that the “independent” studies indicated that friction products could not cause asbestos-related disease. Maune argued these studies were not “independent” and the documents at issue evidenced backroom discussions and a financial and business relationship between Ford, Chrysler, General Motors, and Exponent. Exponent argued the documents were not relevant to establish the bias of testifying experts, and their experts relied on the studies, not the documents at issue. The court found that the court did not abuse its discretion in concluding the documents were relevant and discoverable. The documents related to the studies and scientific defense that Ford used at trial.
Regarding privilege, Exponent failed to meet its burden to show that the documents revealed the mental process by which attorneys serving Exponent’s clients assembled information to use in litigation. The documents were not prepared by an attorney, but by Exponent scientists, and there was no indication that Ford created these agendas. Further, Exponent failed to show it was an agent of Ford’s attorneys, and the documents did not reflect or disclose the mental impressions of counsel. Since the documents were not work product, the documents were likewise not entitled to the protection of the consultant work-product doctrine. However, since Exponent was acting in good faith, the contempt order and $1 monetary sanction was vacated.