it in responding to the state and federal investigations, PNA, in consultation with its in-house and
outside legal counsel, has specifically retained a number of environmental consultants over the
years: ERM; Metcalf & Eddy; Hull & Associates, Inc.; PTI; Blasland, Bouck & Lee, Inc.; and
Test America Analytical Testing Corporation (“Test America”). These environmental
consultants were retained to help PNA and its counsel formulate strategic responses to requests
and demands being made by the government agencies in anticipation of litigation and pursuant to
the two ACOs entered into with PNA. PNA, through its legal counsel and in-house
environmental specialists, has worked and is presently working with these environmental
consultants to determine the appropriate and necessary means of defining and implementing the
requirements of the ACO’s. The results of some of the work performed by each of these
environmental consultants have been reported to the government agencies. However, the
background work performed by them obviously has not been disclosed to the government
agencies or any other third party.

J find that each of the six consultants whose records have been subpoenaed here were
specifically retained to assist PNA in responding to an ongoing investigation pursued by state and
federal environmental agencies, which resulted in the entry of two ACOs. There can be no
serious dispute that these consultants were retained in anticipation of litigation. “TIjf an agency
was not just collecting background information, but had focused its attention on specific entities
it believed may have violated the statute it was charged with enforcing, then the agency was
contemplating litigation.” Chemcentral/Grand Rapids Corp. v. United States EPA, No. 91 C
4380, 1992 WL 281322, at *5 (N.D. Ill. Oct 06, 1992). Accordingly, these consultants are

protected from discovery under Rule 26(b)(4)(B).



26(b)(4)(B), there is no express requirement that a privilege log be produced. See, e.g., Ager v.
Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 502 (10th Cir. 1980).
Thus, plaintiffs’ contention that PNA’s non-testifying expert information is subject to disclosure
on a privilege log under Rule 26(b)(5) is simply incorrect.

For the reasons above, Plaintiffs’ Second Motion to Compel Pilkington to Comply with

Discovery is DENIED.

Q\. B Sal

James. Zagel .
United States District Judge

pate: _ SEP 8.6 2003



Thus:

To the extent that the issue of [a] subpoena becomes applicable, Rule 45 of the Federal

Rules of Civil Procedure cannot be utilized for obtaining an expert’s files where Rule

26(b)(4) remains the limitation on discoverability.

Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd. Partnership, 154 F.R.D. 202, 208 (N.D. Ind.
1993). Moreover, a party seeking such exempt information must demonstrate “exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.” Fed.R.Civ.P. 26(b)(4)(B).

In determining whether a non-testifying expert was retained in anticipation of litigation,
courts analyze the total factual situation of the particular case. McNally Tunneling Corp. v. City
of Evanston, No. 00 C 6979, 2002 WL 59115, at *2 (N.D. Ill. Jan 14, 2002). Courts do not
require that a lawsuit has actually been filed at the time the expert was retained. Canal Barge
Co. v. Commonwealth Edison Co., No. 98 C 0509, 2001 WL 845468, *1 (N.D. Ill. July 25,
2001). Rather, the proper inquiry is whether “in light of the nature of the document[s] and the
factual situation in the particular case, the document[s] can fairly be said to have been prepared
or obtained because of the prospect of litigation.” Binks Mfg. Co. v. National Presto Indus., Inc.,
709 F.2d 1109, 1118-19 (7th Cir. 1983) (citing 8 Wright & Miller, Federal Practice and
Procedure § 2024 (2d ed. 1994)).

In this case, PNA’s Ottawa site has been subject to investigation by state and federal
environmental agencies at least since the mid-1980's as it relates to potential arsenic
contamination. As part of this investigation, PNA entered into two Administrative Consent
Orders (“ACO”) requiring environmental studies of potential source areas, groundwater, surface

water, soil and river sediment, all related to the prior use of arsenic at the Ottawa site. To assist



Furthermore, plaintiffs have not demonstrated any exceptional circumstances necessary to
justify discovery of the documents held by PNA’s non-testifying experts. Fed.R.Civ.P.
26(b)(4)(B). Courts may order the production of non-testifying expert records when: (1) the
condition observed by the expert is no longer observable; or (2) the condition is subject to
replication, but the costs would be judicially prohibitive. See, e.g., Braun v. Lorillard, Inc., 84
F.3d 230, 236 (7th Cir, 1996). Plaintiffs claim that both conditions apply here focusing on the
historical aspects of this investigation and stating that they cannot recreate information collected
years ago. But this argument clearly ignores the fact that three of the experts whose materials are
sought are current experts. Clearly as to them, plaintiffs have their own experts and therefore
have no legitimate basis to demand full discovery of PNA’s non-testifying experts. Plaintiffs’
argument is flawed with respect to the previously retained experts as well because they have
complete access to the reports that were previously prepared by these experts and submitted to
the environmental agencies over the course of the investigation.

Finally, PNA has not waived the discovery exemption provided by Rule 26(b)(4)(B)
because where information enjoys protection under the rule, that protection is not subject to
waiver. Vanguard Sav. & Loan Ass'n, No. Civ. A. 93-4627, 1995 WL 71293, at *2-3 (E.D. Pa.
Feb. 17, 1995). But even if such information can be waived if disclosed, see, e.g., Jumper v.
Yellow Corp., 176 F.R.D. 282, 287 (N.D. Ill. 1997), that waiver is limited to material disclosed
and does not apply to material that remains undisclosed. Accordingly, J reject plaintiffs’

argument.


Minute Orde For (06/93)

United States District Court, Northern District of Illinois

N f Assigned Jud itis i her
ide Magistrate Judge James B. Zagel “than ssid Judge
CASE NUMBER 03 C1086 DATE 9/30/2003
CASE LUDWIG, ET AL vs. PILKINGTON
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.}

(2) a] Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due. .

(4) oO Ruling/Hearingon__——_ssetfor saat

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__set for al

(6) o Pretrial conference[held/continued to] [set for/re-set for]on___setfor at

(7) Oo Trial[set for/re-set for] on___at

(8) oO [Bench/Jury trial] [Hearing] held/continued to sat__

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) O Local Rule 41.1 OIFRCP41(a)(1) OO FRCP41(a)(2)

ao) {Other docket entry] Motion (19) to compel is denied.

al) ff (For further detail see order attached to the original minute order.]

U__| Nonotices required, advised in open court.

No notices required.

umber oC notices

Notices mailed by judge’s stat. OCT 06 2003

Notified counsel by telephone, dave docked

Docketing to mail notices.

Mai! AO 450 form. antl * Qaockering dopa

dyna |

Copy to judge/magistrate judge.

courtroom OZ PY GH EGG GO ute mstat nice
pw deputy’s
initials 4d

Date/tim® feccived ih
central Clerk’s Office £

rwiling sepacy iniats

YQ-



Privilege Log

In the event that the consultants’ documents are exempt from discovery (which I have
found that they are), plaintiffs argue that they are entitled, under Federal Rule of Civil Procedure
26(b)(5), to a privilege log of all the exempt documents. Under Rule 25(b)(5), when a party
withholds information otherwise discoverable by claiming that it is privileged or subject to
protection as trial preparation material, that party is required to describe the nature of the
information withheld to permit the party seeking discovery — and the court - to make a
determination of whether the asserted privilege indeed applies. Disclosure of sufficient
information to permit a court to determine whether the withheld information is subject to
discovery is ordinarily accomplished by means of a log or index of materials withheld under the
claim of privilege. Ultimately, the question of whether the materials are in fact privileged is for
the court to decide, and the court has the right to insist on being presented with sufficient
information to make that decision. Culinary Foods, Inc. v. Raychem Corp., 150 F.R.D. 122, 128
(N.D. Ill. 1993).

In this case, however, J find that the consultants’ documents at issue are exempt from
discovery on the ground that they are non-testifying expert information. As a threshold matter,
non-testifying expert information is entirely exempt from discovery not on the basis of privilege
but, rather, on the basis of unfairness. Both the Advisory Committee Notes on Rule 26(b)(4)(B)
and modem jurisprudence have rejected the idea that consulting experts’ work and information is
protected under the concept of privilege and have, instead, opted to treat the protection of such
information under the concept of unfaimess. See Hartford Fire, 154 F.R.D. at 207. Where

documents are withheld under a claim that they are exempt from discovery altogether under Rule



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS Bp,
EASTERN DIVISION "Gy,

VICKI LUDWIG, LLOYD LUDWIG, KIM 8 2093
NANOUSKI and JOSEPH NANOUSKI,
individually and on behalf of all persons
similarly situated,

No. 03 C 1086
Plaintiffs, Judge James B. Zagel

v.
PILKINGTON NORTH AMERICA, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Pilkington North America, Inc. (“PNA”) owns and operates a glass manufacturing facility
on the Illinois River in Ottawa, Illinois.' This facility is located adjacent to the Village of
Naplate. The facility has been used since 1908 for glass manufacturing. Arsenic was a raw
material used in the process of manufacturing glass at this facility. By-products of the glass
manufacturing process, which may have contained arsenic, were disposed in various locations on
the property of the Ottawa site. Plaintiffs and a putative class of residents and businesses in
Naplate allege that PNA has, over the course ef70 yearsegligently, recklessly and/or
intentionally disposed or discharged arsenic from the manufacturing facility. As a result of this
alleged improper disposal, plaintiffs claim that the soils and groundwater in Naplate have been
contaminated. Plaintiffs further claim that PNA has, for more than 15 years, known of this

arsenic contamination but has failed to investigate, remediate or notify the plaintiffs. Finally,

' The facts as set forth in this section are «ccepted as true solely for the purpose of this
motion.

1)



plaintiffs claim that they have incurred and will continue to incur costs in responding to the
contamination. They seek to recover these costs along with damages for the diminution in value
of their properties, disgorgement of PNA’s profits, and punitive damages.

Plaintiffs have served six of PNA’s non-testifying consultants with subpoenas calling
broadly for the production or all documents related to the work each consultant performed for
PNA. PNA objected to the subpoenas, and so plaintiffs now move to compel PNA to answer
their discovery requests regarding the consultants, to prepare an appropriately-detailed privilege
log as to documents withheld, and to stop interfering with a specific subpoena of one of the six
consultants. In response, PNA argues that its six consultants are protected from discovery by
Federal Rule of Civil Procedure 26(b)(4)(B) because they are experts specially retained by PNA
in anticipation of litigation, who are not expected to testify as experts at trial. PNA further
argues that because any documents shared by PNA and its counsel with these non-testifying
experts or that have been generated by these experts but not disclosed to a third party are
protected from discovery on the grounds of unfairness — not on the basis of privilege — and
plaintiffs are not entitled to a privilege log identifying such documents?

Subpoena of PNA’s Experts
Federal Rule of Civil Procedure 26(b)(4)(B) prohibits parties from seeking:
facts known or opinions held by an expert who has been retained or specially employed

by another party in anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial.

? PNA does not respond to the first issue raised by plaintiffs — the timing on PNA’s
providing answers to interrogatories and documents — because this issue was resolved at a status
hearing on June 19, 2003.