City of Wyoming v. Procter & Gamble Company

Background

The plaintiffs moved to compel documents that Kimberly-Clark Corporation had withheld, redacted, or omitted from production based on attorney-client privilege and work-product protection. The documents had been considered by David Powling, Kimberly-Clark’s Research & Engineering Technical Leader and a longtime employee involved in researching, developing, and testing flushable wipes.

Kimberly-Clark designated Powling as a non-reporting employee expert under Federal Rule of Civil Procedure 26(a)(2)(C). The disclosure identified five proposed testimony topics, including the significance of plaintiffs’ testing, Kimberly-Clark’s internal pump studies, the likely causes of municipal equipment problems, and industry flushability guidelines. The disclosure also stated that Powling could offer opinions or inferences based on his knowledge and experience concerning various issues in the case.

Court’s analysis

The court explained that Rule 26(b)(4)(C) protects certain communications between attorneys and experts who must prepare written reports under Rule 26(a)(2)(B), but does not itself protect communications with non-reporting experts under Rule 26(a)(2)(C). Other privileges or protections may still apply, however.

The court adopted a broad meaning of “considered” for this discovery dispute. A document or communication is considered if the expert generated, saw, read, reviewed, or reflected upon it, even if it did not ultimately affect the expert’s analysis. The court found that Powling had direct and extensive involvement with Kimberly-Clark’s flushable wipes and that Kimberly-Clark’s broad disclosure invoked his entire body of knowledge and experience concerning those products.

The court therefore held that Kimberly-Clark’s designation of Powling as a non-reporting employee expert waived attorney-client and work-product protections for documents and information Powling considered in connection with Kimberly-Clark’s flushable wipes. The court stated that the waiver did not cover documents Powling did not consider and did not extend to unrelated subjects merely because Powling had experience with them.

Documents and disposition

For logged documents, the court reviewed more than 900 entries in Kimberly-Clark’s amended privilege log. It ordered production of documents identifying Powling as an author or recipient, subject to specific exceptions. The court denied the motion as to documents Powling did not author or receive, including Document Nos. 28 and 507 through 509; draft expert disclosures in other flushable-wipes litigation, including Document Nos. 102 and 103; and documents concerning Kimberly-Clark’s lobbying and legislative efforts, including Document Nos. 81, 82, 86, and 91.

For documents previously produced in redacted form, the court granted the motion as to documents for which Powling was an author or recipient, except documents concerning lobbying and legislative efforts and draft expert disclosures.

For unlogged documents created after December 1, 2016, the court granted the motion in part to the extent such documents existed, had not already been produced without redactions, concerned Kimberly-Clark’s flushable wipes, and identified Powling as an author or recipient. The court denied the motion as to lobbying and legislative materials, draft expert disclosures, and post-December 1, 2016 documents that Powling did not author or receive.

Order

The court ordered Kimberly-Clark to produce the required documents within 21 days. Kimberly-Clark could designate those documents “Attorneys’ Eyes Only” under the protective order. The court ordered each party to bear its own costs and attorney fees. The order states that the plaintiffs’ motion to compel was GRANTED IN PART and DENIED IN PART.