Pursuant to a subpoena, the Pension Fund plaintiffs soughtproduction of documents by a third party not otherwise involvedin the litigation, Massachusetts Financial Services InvestmentManagement ("MFSIM"). They moved to compel such production whenthese parties could not resolve their differences as to thedocuments. The court allowed the motion without opposition andMFSIM now moves for reconsideration on the ground of excusablemistake.
The motion for reconsideration is allowed.
With respect to the underlying motion, MFSIM points to thelanguage of Rule 45(c)(3)(B)(ii) which protects from disclosure"an unretained expert's opinion or information not describingspecific events or occurrences in dispute . . ." It argues thatthe documents in issue are internal reports about Ciscosecurities prepared by its research analysts for its employeeswho make investment decisions. They therefore fall within theprotective language of the Rule. MFSIM further points out that ithas already produced more than 1200 pages of documents thatreflect communications between the analyst and Cisco that areproperly subject to discovery. Plaintiffs complain aboutstonewalling. The Court has, of course, not reviewed the disputed documentsand cannot, therefore, decide whether each and every one isprotected as expert work product or whether it must be produced.If the parties are intent on pursuing this matter, MFSIM shallfile a privilege log, and plaintiffs may file a further motion totest MFSIM's assertions of expert work product. [Page 529, ]