Cashman Equipment Corporation, Inc.
Cardi Corporation, Inc. et al.
Justice Michael A. Silverstein Providence County PB 11-2488
Petitioner: Michael A. Kelly, Esq.
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
William P. Robinson III Associate Justice
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) 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.
reasons set forth in this opinion, we quash the writ and
affirm the ruling of the Superior Court.
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 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.
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.
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).
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
"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,