Hernandez v. The Office of the Commissioner of Baseball

Background

Angel Hernandez, an umpire employed by Major League Baseball, sued the Commissioner of Baseball and a related entity. He alleged discrimination based on Major League Baseball’s decisions not to assign him to umpire the World Series and not to promote him to crew chief.

The defendants moved to compel production of a memorandum written by Hernandez’s expert, Dr. Gregory W. Baxter. Baxter had already submitted his expert report and was later deposed. During the deposition, Baxter testified that he had reviewed a memorandum he wrote to himself about the methodology he used to evaluate comments in employee performance reviews and compare them with umpire evaluation reports. He said he prepared it because he expected questions about his methodology during the deposition and to help explain that methodology to the jury. He also testified that Hernandez’s counsel did not ask him to prepare it.

Baxter later sent the document to Hernandez’s counsel with the subject line “Proposed Supplement to Baxter’s Expert Report.” Hernandez asserted that the document was protected work product under Federal Rule of Civil Procedure 26(b)(4).

Analysis

Rule 26(b)(4) protects drafts of expert reports required under Rule 26(a)(2) and certain communications between a party’s attorney and a testifying expert. The party claiming the protection bears the burden of showing that it applies.

The court rejected Hernandez’s argument that the memorandum was a protected draft report. Baxter’s deposition testimony described it as a memorandum written for himself to prepare for questioning about his methodology, not as a draft report. The court also noted that the scheduling order did not provide for a supplemental expert report, counsel had not instructed Baxter to prepare one, and no version of the memorandum’s contents had been included in any report. Calling the document a “supplement” did not make it a protected draft of a required report.

The court also rejected Hernandez’s argument that the memorandum was a protected attorney-expert communication. The document was created for Baxter’s own use and was not intended at the time of creation to communicate with counsel. Baxter’s later transmission of the document to counsel did not change its character. The court concluded that an expert’s notes to himself do not qualify for protection under Rule 26(b)(4).

Because it found that the memorandum was not protected, the court did not address whether Hernandez had waived protection or whether the document was independently discoverable because Baxter reviewed it before his deposition.

Ruling

Judge Gabriel W. Gorenstein granted the defendants’ motion to compel. The order required Hernandez to provide the memorandum to the defendants within three business days. It also allowed the defendants to re-depose Baxter promptly, with questioning limited to the memorandum and related matters.