In re: Elysium Health-Chromadex Litigation

Background

Elysium Health, Inc. moved under Federal Rule of Civil Procedure 37(a) to compel ChromaDex, Inc. to produce spreadsheets and other work papers prepared in connection with the work of ChromaDex’s damages expert, Lance Gunderson. Gunderson’s March 4, 2021 report included his damages opinions, alternative damages scenarios, and schedules listing the information he reviewed. The schedules appeared to have been converted from Microsoft Excel into a static PDF, and Elysium sought the underlying calculations.

Elysium argued that the requested materials contained the math used to formulate Gunderson’s damages opinions and were necessary to understand, verify, and analyze those opinions. ChromaDex responded that Elysium had access to the documents and data listed in the report and that the report’s schedules disclosed the figures, data, and source documents underlying the opinions. ChromaDex characterized the missing materials as draft or unreported calculations and work papers reflecting intermediate analysis and communications with counsel.

Legal standard

The court applied the expert-disclosure provisions of Federal Rule of Civil Procedure 26. Rule 26(a)(2)(B) requires disclosure of the facts or data considered by a testifying expert in forming the expert’s opinions. The court explained that this requirement is broad and covers factual material considered by the expert, not only material the expert ultimately relied on.

But Rule 26(b)(4) protects drafts of expert reports, regardless of their format, as well as certain communications between a party’s attorney and a testifying expert. The court held that, when the expert’s opinions and the facts and data considered in forming those opinions have been disclosed, the expert’s initial or rough draft analysis generally need not be produced. Spreadsheets, charts, and analyses that reflect the expert’s or counsel’s interpretation and organization of data may be protected work product rather than undisclosed facts or data.

The court also rejected Elysium’s argument that provisions allowing discovery to identify facts, data, or assumptions supplied by counsel required production of every document containing such material. The court read those provisions as allowing discovery to identify what facts, data, and assumptions counsel provided and the expert considered or relied on—not as requiring production of every draft or underlying document containing them.

Ruling

The court found that Elysium had not shown that the requested materials were facts or data subject to disclosure. It credited ChromaDex’s representation that the materials consisted of Gunderson’s draft and unreported calculations prepared during the drafting process and reflected his communications with counsel. The court stated that the fact that the materials revealed Gunderson’s math or might help Elysium evaluate his analysis did not make them discoverable. Because Elysium had the underlying facts and data and Gunderson’s conclusions, it could perform its own calculations and assess whether his methods were correct or persuasive.

The court said Elysium could question Gunderson at deposition about the facts and data he considered, how he treated them, the methods he selected, and alternative methods he considered. It could also ask whether he had disclosed all facts and data considered in forming his opinions and seek production of any undisclosed facts or data. It could not, however, obtain ChromaDex’s and its counsel’s protected work product to learn which alternative methods Gunderson explored in draft work, what results they might have produced, or why he did not adopt them.

The motion to compel was DENIED.