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Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc.

Supreme Court of Rhode Island

June 3, 2016

Cashman Equipment Corporation, Inc.
v.
Cardi Corporation, Inc. et al.

         Associate Justice Michael A. Silverstein Providence County PB 11-2488 Superior Court

          For Petitioner: Michael A. Kelly, Esq.

          For Respondents: Robert G. Flanders, Jr., Esq. Mark P. Dolan, Jr., Esq. Mark P. Dolan, Esq. Jeremy Ritzenberg, Esq. Christopher N. Dawson, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          William P. Robinson III Associate Justice

         Cashman Equipment Corporation, Inc. (Cashman) filed a petition for issuance of a writ of certiorari in which it stated that it was seeking review of the May 13, 2014 denial in Providence County Superior Court of its motion to compel the production from Cardi Corporation, Inc. (Cardi)[1] of the following: "all materials and documents, less core attorney work product, including all computer models and drafts of materials and documents, developed and considered by [Cardi's] testifying expert * * * in the process of formulating his written expert opinions * * *." In a November 20, 2014 order, this Court granted Cashman's petition. Cashman contends that the hearing justice erred in denying its motion to compel because, in Cashman's view, materials which are considered by a testifying expert in formulating his or her opinion are discoverable, with the exception of "core attorney work product." According to Cashman, it was, therefore, error for the hearing justice to refuse to compel Cardi to produce the requested documents.

         For the reasons set forth in this opinion, we quash the writ and affirm the ruling of the Superior Court.

         I Facts and Travel

         The civil action from which this discovery dispute evolved concerns work performed in the course of building the Sakonnet River Bridge. Specifically, the case addresses, among other issues, whether or not Cardi provided defective cofferdams[2] for that bridge-building project. On May 2, 2011, Cashman commenced the instant action setting forth a number of allegations against Cardi including breach of contract, unjust enrichment, and negligence due to the fact that Cardi allegedly supplied a defective design for the cofferdams and defective materials. Cashman contended, in its May 2, 2011 complaint, that Cardi's actions required Cashman to perform additional work on the bridge for which it was entitled to compensation.

         During the course of discovery, Cardi refused to turn over certain computer models and draft reports that had been "considered by" its testifying expert, George Tamaro, and Mr. Tamaro's engineering firm, Mueser Rutledge Consulting Engineers. Cardi refused to turn over the documents at issue because it contended that the documents were not included within the scope of expert discovery permitted under Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure. On April 18, 2014, Cashman moved to compel disclosure. A hearing on Cashman's motion followed on May 13, 2014.

         At the hearing, Cashman argued that it was desirous of obtaining any computer models which Cardi's expert created to determine "certain stress and loads that are going to be placed on certain points on this cofferdam." Specifically, Cashman stated that it was seeking models "that [the expert] created which [he] may not have relied on but certainly would've considered" as well as draft reports. Cashman stressed the usefulness of such models in cross-examining an expert witness, and it emphasized their necessity for the purpose of determining how the expert arrived at the final model or report which he ultimately relied upon in forming his expert opinion. Cardi responded by contending that materials "considered by" an expert in forming his or her expert opinion are not discoverable under the terms of Rule 26(b)(4).

         The hearing justice issued a decision from the bench at the close of the hearing on May 13, 2014. He concluded that he did not have the authority to compel production of the draft reports and computer models; and he denied Cashman's motion to compel, stating as follows:

"The Court holds in this matter that it seems to the Court there is no question but that under the circumstances here, counsel for Cashman would certainly be advantaged in connection with the cross-examination that he would undertake of the experts put forth by Cardi if the Court were to grant to him what is the subject of the motion pending before the Court.
"If the Court were writing on a clean piece of paper there is no question but that the Court, at least based on my reading and the arguments presented and the papers presented by the parties, would order the production. The Court, ...

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