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Elizabeth Thieriot, Individually and As Trustee of the Elizabeth Thieriot v. Jaspan Schlesinger Hoffman Llp

September 28, 2011

ELIZABETH THIERIOT, INDIVIDUALLY AND AS TRUSTEE OF THE ELIZABETH THIERIOT REVOCABLE TRUST, AND THE ELIZABETH THIERIOT REVOCABLE TRUST, PLAINTIFFS,
v.
JASPAN SCHLESINGER HOFFMAN LLP, STEPHEN P. EPSTEIN, LISA M. GOLDEN, ALAN K. HIRSCHHORN, AND SETH H. ROSS, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

ORDER

Pending before the Court is Plaintiffs' Motion to Compel production of documents which Defendants' counsel asserts were inadvertently provided to Defendants' expert witness. DE 29. The Court previously deferred ruling on this motion [DE 45] and directed Defendants' counsel to provide additional materials for the Court's review. In response, Defendants provided (1) the Affidavit of Paul R. Williams, Defendants' expert witness [DE 48], and (2) the Affirmation of Paul McDougal [DE 49], attorney for the Defendants in this action, with three emails attached as Exhibits A, B and C. Additionally, the parties have filed other correspondence raising issues related to the motion to compel. See, e.g., DE 42, 44, 50-51. The Court has reviewed all of the documents provided by Defendants pursuant to the directives given in DE 45 as well as the additional correspondence submitted by each party. For the reasons set forth below, Plaintiffs' Motion to Compel is DENIED.

I. THE SWORN STATEMENTS

A. Affidavit of Paul R. Williams

In his Affidavit, Defendants' expert, Paul Williams, who was retained to provide an expert opinion regarding the alleged legal malpractice charged in the Complaint (and who himself is a lawyer), states that he was first contacted about this case in June of 2009. Affidavit of Paul R. Williams ("Williams Aff."), ¶ 2. After an initial conversation with Paul McDougal, Defendants' attorney, Williams received a series of e-mails from McDougal with various documents attached. Williams Aff. ¶ 2. These included the pleadings in this case as well as the pleadings from the underlying specific performance action, along with court orders and decisions in both actions, deposition transcripts and other materials submitted to this Court. Id.

According to Williams, the Friday before the July 4, 2009 holiday weekend, he printed out all of the attachments to the e-mails on a copier in his firm's office suite and took the materials home to review. Id. ¶ 3. While sorting out the documents that weekend, Williams came across "what appeared to be a multi-page letter on Mr. McDougal's firm letterhead to an attorney by the name of Leigh Tuccio, at the law firm of Mendes & Mount." Id. ¶ 4. Williams believes the letter was titled a "Case Report" or "Case Summary." Id. After looking at the letter, Williams concluded that it was a case or status report from McDougal to his client. Williams states the following:

I presumed the letter would have contained primarily opinions of counsel, and had not been reviewed by Plaintiff's expert in preparing his report. I therefore concluded that it would not be appropriate for me to read it before rendering an opinion in the case. I do not now recall with certainty what became of the copy but my best recollection at this time is that I discarded it at my home at that time. I affirm that at no time did I read the content of that letter.

Id. ¶ 5.

In the ensuing weeks, Williams received additional discovery materials from McDougal. Among these materials were transcripts of the parties' depositions and exhibits which were marked at those depositions. Id. ¶ 6. As he read through the transcripts, Williams referred to the exhibits as they were mentioned during the testimony. In doing so, Williams noticed a "collection of handwritten notes on several sheets of yellow legal pad paper." Id. In looking at the first page of notes, Williams concluded that these were handwritten notes taken during the course of one or more of the depositions. He presumed the notes were taken by McDougal, although he did not recognize the handwriting. Since Williams had complete transcripts of the depositions, he saw no need to attempt to read the handwritten notes and states that he did not do so. Id. Williams further states that at the conclusion of his own deposition, which took place in Attorney McDougal's office, he "left Mr. McDougal's original files (including deposition transcripts, exhibits, and any handwritten notes) with Mr. McDougal. At no time before or after that date did I read the content of these notes." Id. ¶ 7.

B. Affirmation of Attorney Paul R. McDougal

Initially, Attorney McDougal confirms that the documents at issue here are a report from his firm to his clients' malpractice carrier (the "Report") and his notes in files containing deposition transcripts (the "Notes") that were inadvertently given to defendants' expert, Paul R. Williams.*fn1 Affirmation of Paul R. McDougal ("McDougal Aff.") ¶ 2. Attorney McDougal had a conversation with Williams on June 30, 2009 regarding this case and the need for an expert to provide an opinion and a report. At that time, McDougal discussed with Williams the nature of the case, the allegations in the complaint, the defendants' position and the opinions of plaintiffs' legal expert. McDougal Aff. ¶ 3. That same day, McDougal e-mailed Williams the complaint and the expert reports and other materials that plaintiffs' counsel had e-mailed to McDougal earlier in the month. Id. The next day, Williams sent McDougal an e-mail setting forth his preliminary impressions of the case. Id. ¶ 4. The e-mail is attached as Exhibit A to McDougal's Affirmation and has been produced to the plaintiffs.

On July 2, 2009, McDougal e-mailed Williams 14 additional documents. One of these was the Report at issue here. Id. The Report was e-mailed in PDF format as an attachment under the heading "Initial Evaluation Memo.pdf." Id. The e-mail is attached as Exhibit B to the McDougal Affirmation and has also been produced to the plaintiffs.

According to McDougal, he and Williams never discussed the opinions in the Report "before Williams was able to form his own independent opinions as expressed in his expert report." Id. ¶ 5. McDougal acknowledges that he and Williams did discuss factual items found in the Report, but adds that "these were all items that were referred to in other documents that had been delivered to both experts." Id. The Report is a preliminary evaluation of the case which summarizes the facts and proceedings of the instant legal malpractice action, the underlying real estate transaction and specific performance litigation, as well as the allegations in the Complaint. The Report also states an opinion as to the viability of each of the claims of malpractice and discusses the defenses. Id. McDougal has no recollection of the Report ever being returned to him. After Williams testified that he had received but not read the Report and had returned it, McDougal spoke to Williams and advised that he had no recollection of the Report being returned to him. Id. ¶ 6. Williams told McDougal during that conversation that he believed the copy of the Report was discarded after Williams printed it and that he did not return it to McDougal. Id.

As to the Notes, McDougal states that Williams e-mailed him on July 13, 2009, seeking copies of all the deposition transcripts that had been ...


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