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September 29, 2021 Practice Points

Ensuring Consulting Experts Wear Only One Hat to Protect Work Product

Assess the needs for consultants and experts at the outset of a matter and plan to keep each wearing only one hat, notwithstanding the redundancies this can entail.

By Paul V. Majkowski

A recent case involving claims for mold in military housing and its remediation provides a reminder of the need to properly define and restrict the role of consulting experts to maintain privilege over their work, and more broadly, to plot out the roles of all consultants and experts at the outset of a matter to minimize the risk of losing privilege. Addi v. Corvias Management-Army, LLC, No 1:19-cv-03253-ELH, 2021 U.S. Dist. LEXIS 179855 (D. Md. Sept. 21, 2021).

Addi is a putative class action brought by military members and their families against the Army’s property management contractors in Fall 2019, alleging that housing provided to them at Fort Meade was contained mold, causing them health problems. Similar cases have been filed in other courts as well, and the claims have attracted media attention. About a year before the action was filed, some of the plaintiffs began to make complaints to the contractors and others, such as the Army Inspector General, the Fort Meade Garrison Commander, and the Senate Armed Services Committee, which led to Congressional hearings in early 2019.

Given these developments, the contractors retained counsel pre-suit in Fall 2018, and counsel, in turn, hired a group of “consulting experts to assist [counsel] in its assessment of Defendants’ legal risk related to mold in the military housing units Defendants managed at Fort Meade by inspecting and collecting data from those units.” While such a relationship would trigger attorney work product protection, the consultants were eventually asked to wear a “second hat,” that is, in addition to gathering data for counsel’s use, these consultants “also got involved in scheduling and performing the mold inspections and remediation taking place at Fort Meade beginning in March of 2019.”

As the district court explained the application of the work product doctrine under the circumstances:

If [the consultants] had remained solely in their original role of retained consulting experts, the analysis would be straightforward: their gathering, analysis and reporting of technical information to assist [counsel] in its representation of Defendants, and the surrounding communications, would be protected from disclosure absent a showing of substantial need and inability to obtain the information from another source without undue hardship. However, the analysis is more complicated once [the consultants] take on the additional role as the entities scheduling and undertaking the actual inspection and remediation program and, in so doing, becoming fact witnesses for whom no protection would apply as to those activities.

Thus, “any protection to which it might otherwise be afforded—had it remained within the confines of a consulting expert relationship— is lost to the extent [the consultants] assumed public facing roles in assessing and trying to correct the mold issues at Fort Meade.”

The court undertook an in camera review of sample sets of documents selected by the parties, issuing directions as to what might be produced and what might be protected. Notably, the court did recognize that while the universe of data collected by the consultants might be discoverable, documents that reflect counsel’s selection of data, i.e., “documents that speak to the subset of that data being requested, communicated, reported, or used by [counsel] remain protected as work product.”

Despite the court’s recognition that work product protection can be maintained to some extent, the preferable circumstance would be to avoid such a dispute and risking the loss of privilege. The better course is to assess the needs for consultants and experts at the outset of a matter and plan to keep each wearing only one hat, notwithstanding the redundancies this can entail.

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Paul V. Majkowski

Paul V. Majkowski is a partner at Rivkin Radler LLP in New York, New York.

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