                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
_____________________________________________
UNITED STATES OF AMERICA, ex rel.,            )
AARON J. WESTRICK, PH.D.,                     )
                                              )
                  Plaintiffs,                 )
                                              )
      v.                                      ) Civil Action No. 04-0280 (RWR/AK)
                                              )
SECOND CHANCE BODY ARMOR, INC., et al.,       )
                                              )
                  Defendants.                 )
_____________________________________________ )

                                  MEMORANDUM OPINION

       Pending before this Court is a Motion by the United States (hereinafter “Plaintiff’ or the

“United States”) to Compel Production of Documents and Other Tangible Items in the

Possession of James W. Murray and to Compel the Deposition of James W. Murray (“Motion”)

[315] and the Memorandum of Points and Authorities in support of the Motion

(“Memorandum”) [315-1]; Defendants Toyobo Co., Ltd.’s and Toyobo America, Inc.’s

(collectively, “Toyobo” or “Defendants”) Opposition to the Motion (“Opposition”) [320];

Plaintiff’s reply to the Opposition (“Reply”) [326]; Defendants’ Sur-reply to the Reply (“Sur-

Reply”) [329]; and Plaintiff’s response to the Sur-Reply (“Response”) [333]. The United States

seeks to compel the deposition of and production of documents by James W. Murray

(“Murray”), a consulting expert for Toyobo. This Court held a hearing on this Motion on

December 4, 2012.

       According to the United States, Murray and his company “were responsible for acquiring

ballistic vests” that were later tested by Toyobo’s testifying expert, Allen L. Price (“Price”), who

concluded that “all used ballistic material would fail a particular method of testing.” (Motion at

1.) “Specifically, the United States seeks documents relating to the acquisition, storage, care,
evaluation, testing and selection of used vests obtained by James W. Murray and his company,

Shots-M-Stuff Testing . . . , and the vests themselves.” (Memorandum at 2.)

                                             I. Background

        The United States seeks to recover damages in this civil action pursuant to the False

Claims Act, 31 U.S.C. §§3729-3733, “for the sale of defective Zylon body armor paid for with

federal funds.” (Memorandum at 2.)1 Plaintiff alleges that Zylon degrades to a larger extent, at a

faster rate and less predictably than disclosed, making it unsuitable for ballistic applications.

(Memorandum at 3.) Toyobo is a manufacturer of Zylon fiber, which was used in ballistic panels

of vests manufactured by several companies, including Second Chance Body Armor. (Id.)

Toyobo’s testifying expert is Allen Price, President and Chief Executive Officer of United States

Ballistic Engineering, Inc. (Memorandum at 3.) Price performed tests on aramid vests using the

same National Institute of Justice (“NIJ”) protocols that were used on Zylon vests and concluded

that the failure rate was comparable or higher. (Memorandum at 4.) Price opined that “[n]o one

in the industry disputes that aramid is suitable for use in ballistic applications, yet used aramid

vests failed the new vest testing protocols just like used Zylon-containing vests.” (Id.) (emphasis

in original). Price thus concluded that because the aramid vests would have also failed the

Government’s testing in August 2005, the testing employed “is not determinative of Zylon’s

suitability for ballistic applications.” (Id.)

        Plaintiff claims that Toyobo has not provided it with information or documents relating to

the acquisition, storage, care, evaluation, pre-testing or selection of the vests tested by Price.



        1
       In this Background section of the Memorandum Opinion, the citations refer to the
Motion, Opposition and Reply and omit reference to internal citations therein.

                                                  -2-
(Memorandum at 4.) Toyobo did however make available for inspection the 128 used aramid

vests [consisting of 256 vest panels] and Plaintiff ascertained that the source of the aramid vests

was the Baltimore Police Department, which sold or gave Murray [Defendants’ consulting

expert] a large number of vests over a period of six years. (Memorandum at 4-5.)2 According

to Plaintiff, “Murray and his company, Shots-M-Stuff Testing, have served as expert

consultants” for the Defendants and they “were responsible for acquiring ballistic vests and

selecting the subset of those vests [which were later] tested by Toyobo’s testifying expert

witness, Allen L. Price.” (Motion at 1.)3

       On May 7, 2012, Plaintiff subpoenaed documents from Murray, seeking information on

Murray’s acquisition, testing, analysis and transfer of the vests, as well as the care, use and

storage histories of the vests and the vests themselves. (Memorandum at 5.)4 On June 5, 2012,

Plaintiff served Toyobo’s counsel with a deposition subpoena for Murray. (Id.) Toyobo claims

that responsive documents and testimony are shielded from discovery “by the attorney work

product doctrine and/or the consulting expert privilege,” id., and Plaintiff thereafter filed the

instant Motion to compel Murray’s deposition and production of documents concerning the


       2
         See May 22, 2012 letter from Defendants’ counsel to Plaintiff’s counsel confirming that
“all the vests tested by Mr. Allen Price in his expert reports, . . . , were acquired from the
Baltimore City Polict Department (‘BPD”) and provided to Mr. Price by counsel for Toyobo.”
(Reply, Exh. [326-3].) This Court notes that the Plaintiff’s Memorandum at 4 references 102
vests but counsel referenced 128 vests during the December 4, 2012 hearing.
       3
        Plaintiff’s statement that Murray was responsible for selecting the subset of vests that
were later tested by Price is inaccurate. Toyobo asserts that “[c]ontrary to the Government’s
assertion in its motion, Toyobo’s counsel - not Mr. Murray - selected the used Kevlar vests for
Mr. Price to test.” (Opposition at 2 n.1.)
       4
        At the December 4, 2012 hearing, counsel acknowledged that the United States is not
seeking information about the storage and care of the vests while in the custody of the BPD.

                                                 -3-
vests. Information sought by the United States may be summarized as follows: 1) storage and

care of the vests while in Murray’s custody and control; 2) pre-testing of the vests by Murray;

and 3) selection of the vests that were tested by Price.

                                           II. Legal Standard

        Plaintiff moves pursuant to a Fed. R. Civ. P. 45(a) subpoena to James W. Murray to

compel the production of documents and other tangible items as well as Murray’s deposition.

Plaintiff’s Motion relies upon Fed. R. Civ. P. 45(c)(2)(B)(i) which states that “[a]t any time, on

notice to the commanded person, the serving party may move the issuing court for an order

compelling production or inspection.”5

        Pursuant to Fed. R. Civ. P. 26(b)(3)(A) a party may not ordinarily “discover documents

and tangible things that are prepared in anticipation of litigation or for trial by or for another

party or its representative [which includes consultants].” These materials may however be

discovered if they are not privileged and relevant to a party’s claims or defenses and “the party

shows that it has substantial need for the materials to prepare its case and cannot, without undue

hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(i) &

(ii); see also Fed. R. Civ. P. 26(b)(1).

        Similarly, Fed. R. Civ. P. 26(b)(4)(D) provides that “[o]rdinarily, a party may not, by

interrogatories or deposition, discover facts known or opinions held by an expert who has been

retained or specially employed by another party in anticipation of litigation or to prepare for trial



        5
         Rule 45(a) provides in relevant part that a subpoena must “command each person to
whom it is directed to . . . : attend and testify; produce designated documents, electronically
stored information, or tangible things in that person’s possession, custody, or control; . . . .”
Fed. R. Civ. P. 45(a)(1)(A)(iii).

                                                  -4-
and who is not expected to be called as a witness at trial.” There are however certain exceptions

to this Rule, including “[a] showing [of] exceptional circumstances under which it is

impracticable for the party to obtain facts or opinions on the same subject by other means.” Rule

26(b)(4)(D)(ii).

           III. Analysis of work product doctrine and consulting expert immunity

       In the instant case, Toyobo contends that “[c]ounsel has spent over six years developing

and testing a variety of legal theories with Mr. Murray under the well-settled protections of the

consulting expert privilege for this and other Zylon-related litigation” and such work “implicates

the mental impressions, conclusions, opinions and legal theories of counsel in developing its

litigation strategy, including its used vest testing strategy.” (Opposition at 1.) Toyobo further

asserts that such information was [specifically] not shared with Mr. Price nor was it “in any way

relied upon or considered by Mr. Price in forming his opinions.” (Opposition at 2.)

Plaintiff alleges however that, “Toyobo has frustrated the purposes of expert discovery, however,

by having its non-testifying consultant, Murray, apparently play an integral role in the testing

conducted by its expert witness, Price, and then claiming that consulting expert immunity and

the work product doctrine protect Murray’s work and knowledge from discovery.”

(Memorandum at 9.)

       A. Work product doctrine

       The party who seeks work product doctrine protection is responsible for establishing

applicability of the protection and that there has not been a waiver. U.S. Airline Pilots Ass’n v

Pension Benefit Guaranty Corp., 274 F.R.D. 28, 31 (D.D.C. 2011). Plaintiff argues that the work

product protection is not absolute but is instead qualified because it is “designed to balance the


                                                -5-
needs of the adversary system to promote an attorney’s preparation against society’s general

interest in revealing all facts relevant to the resolution of a dispute.” (Memorandum at 22-23); In

re Sealed Case, 856 F.2d 268, 273 (D.C. Cir. 1988) (citation omitted). Documents and other

tangible items prepared in anticipation of litigation that reveal factual information may be

discovered if a party shows a “substantial need for the materials to prepare its case and [it]

cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R.

Civ. P. 26(b)(3)(A)(ii); see also In re Veiga, 746 F. Supp. 2d 27, 35 (D.D.C. 2010)

(distinguishing “fact” work product from “opinion” work product).

       1. Relationship between testifying and non-testifying expert

       Plaintiff asserts that because of the close connection between Price and Murray, the

application of work product protection in this case warrants stricter scrutiny and weighs in favor

of disclosure. See Trigon Insurance Company v. United States, 204 F.R.D. 277, 280 (E.D.Va.

2001) (wherein defendant retained the same firm as a non-testifying expert litigation consultant

and a testifying expert). Plaintiff argues that Murray, Toyobo’s non-testifying consultant, is

“Price’s former business partner and retains ownership interests in Ballistic Engineering, Inc.,

Price’s company. . . . “ (Motion at 1.)6 Defendants explain however that “Murray owns less that

2% of stock in [Price’s] company, USBE” and “he has no role in the day-to-day operations of

USBE and does not do any work on behalf of USBE.” (Price Declaration ¶14.) Furthermore,

Murray “does not receive any payments or compensation from USBE.” (Price Declaration ¶15.)

In light of the record in this case, this Court finds that the current business relationship between



       6
       Plaintiff’s counsel also noted that Murray and Price are friends and neighbors.
(December 4, 2012 hearing.)

                                                 -6-
Price and Murray does not warrant stricter scrutiny or, on its face, weigh in favor of disclosure.

       2. Disclosure by Murray to Price may be a waiver of work product protection

       A party who selectively and deliberately discloses work product to gain a tactical

advantage during litigation waives the protection as to the entire subject matter of the disclosure.

See Bowles v. Nat’l Ass’n of Home Builders, 224 F.R.D. 246, 259 (D.D.C. 2004) (finding a

subject matter waiver of opinion work product which would likely “ensur[e] that the evidence in

the record will not reflect only one side or a part of a privileged communication.”)7 Plaintiff

claims that Toyobo waived any work product protection when Murray provided a subset of vests

to Price (Memorandum at 21), but that argument fails because Murray did not select the subset

of vests that was provided to Price nor did Murray share any information about the vests with

Price. See Murray Declaration ¶¶8-9 (explaining that Murray was explicitly instructed not to

disclose any information to Price and affirming that he never did).

       In the instant case, Plaintiff has proffered nothing more than speculation to support its

assertion that Price relied upon information from Murray. Toyobo asserts that “counsel’s

retention of Mr. Murray as a consulting expert was completely independent of Toyobo’s

retention of Mr. Price as a testifying expert.” (Opposition at 4.) “Both were instructed not to

discuss each other’s activities, and neither expert has ever shared or discussed the results of any

work they have conducted on behalf of counsel or Toyobo.” (Opposition at 5.)

       Price’s Declaration supports these statements by Toyobo. Price asserts that “[i]n forming

[his] opinions in this case, [he] did not see, consider, or in any way rely upon any information



       7
        In Bowles, the subject matter waiver did not extend to information relating to trial
preparation or litigation strategy. 224 F.R.D. at 258.

                                                -7-
from Mr. Murray. Indeed, [he] never received any information from Mr. Murray about any work

he may have performed for Toyobo or its counsel, nor ha[s] [he] ever had any discussions with

Mr. Murray about any work he may have done for them.” (Price Declaration ¶7.) Price further

states that [s]pecifically, [he] never received any information from Mr. Murray, Toyobo, or

Toyobo’s counsel about how the used Kevlar vests [he] tested were obtained [and] [he] had no

information from any source as to how the used Kevlar vests [he] tested were selected or any

pre-testing that had been done on them.” (Price Declaration ¶10.)8 Accordingly, this Court finds

that there has not been a waiver of work product protection based on any disclosure by Murray

to Price.

        3. Plaintiff’s substantial need for the requested documents which are available only
        from Murray

        Work product protection is not absolute but rather, it is a qualified immunity “designed to

balance the needs of the adversary system to promote an attorney’s preparation against society’s

general interest in revealing all facts relevant to the resolution of a dispute.” In re Sealed Case,

856 F.2d 268, 273 (D.C. Cir. 1988). Therefore, documents and other tangible items prepared in

anticipation of litigation that reveal factual information may be discoverable if “the party shows

that it has substantial need for the materials to prepare its case and cannot, without undue

hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii); see

also In re Veiga, 746 F. Supp.2d 27, 35 (D.D.C. 2010) (emphasis added).



        8
         During oral argument, Plaintiff asserted that certain billing entries/invoices referencing
“vest harvesting” lend support to its argument that Price has additional knowledge about vest
selection. (December 4, 2012 hearing; Response at 7.) There is no evidence however that Price
acquired any of the vests from the BPD or otherwise participated in the selection of the 128 vests
that he subsequently tested.

                                                 -8-
       Plaintiff seeks information about Murray’s storage and care of the vests, any pre-testing

of the vests conducted by Murray, and the selection of vests that were ultimately tested by Price.9

(Memorandum at 23; December 4, 2012 hearing.) As a preliminary matter, this Court

distinguishes between the types of information sought by Plaintiff. Information regarding any

pre-testing of vests and the ultimate selection of vests, by its very nature, encompasses opinions,

legal theories and/or litigation strategies and it is work product that should not be provided to the

Plaintiff.10 Information regarding the storage and care of the vests by Murray, however, is purely

factual information which may be obtained upon Plaintiff’s showing of “substantial need.”

       There is no dispute that Price’s testimony on the application of NIJ testing protocols is

relevant to the Plaintiff’s case. The parties agree that the nature of storage and care of the vests

impacts the condition of the vests and is relevant to degradation of the vests. (December 4, 2012

hearing). Plaintiff asserts that vest storage and care information may be used to cross-examine

Price and prepare rebuttal witnesses (Memorandum at 23) and this Court finds this assertion to

be plausible.11 Plaintiff contends that “Murray is likely the only source of th[e] information

[being sought], and the United States cannot obtain the substantial equivalent at all except from

       9
         The results of any pre-testing of the vests by Murray and the manner in which the subset
of vests was selected do not bear on the Price’s classification and testing of vests using the NIJ
protocols.
       10
         Plaintiff’s counsel has alleged that Toyobo “cherry-picked” the vest sample selected for
testing by Price. (December 4, 2012 hearing.) The Plaintiff’s inspection of vests that were
tested by Price should have provided information as to whether Toyobo’s counsel selected “light
and thin” vests, as suggested by Plaintiff’s counsel during the hearing. Toyobo’s counsel
indicated that all vests that were tested by Price were: used; made of materials other than Zylon;
and were “NIJ certified.” (December 4, 2012 hearing.)
       11
        At the December 4, 2012 hearing, Plaintiff indicated its intention to pose a Daubert
challenge to Price’s testimony/conclusions. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).

                                                 -9-
him.” (Memorandum at 23.) Toyobo does not dispute that Murray is the only source of

information about storage and care of the vests received from the BPD.

        The Plaintiff argues that, contrary to Toyobo’s assertions, the “wear condition” assigned

by Price to each vest does not necessarily capture the storage and care conditions (December 4,

2012 hearing) and the Court agrees with this assessment.12 Accordingly, the Court finds that the

Government has demonstrated a substantial need for factual information about the storage and

care of the vests for purposes of evaluating the test results obtained by Price and preparing

rebuttal witnesses. This information is thus found to be discoverable despite work product

protection.

       B. Consulting Expert Immunity

       In addition to work product protection, Toyobo relies upon consulting expert immunity

pursuant to Rule 26(b)(4)(D), which shields from discovery facts known or opinions held by an

expert retained by a party to prepare for trial and who is not expected to be called as a witness at

trial. Four commonly stated policy considerations underlying Rule 26(b)(4)[(D)] are:

       (1) the interest in allowing counsel to obtain the expert advice they need in order [to]
       properly evaluate and present their clients’ positions without fear . . .; (2) the view that
       each side should prepare its own case at its own expense; (3) the concern that it would be
       unfair to the expert to compel its testimony and also the concern that experts might
       become unwilling to serve as consultants if they suspected their testimony would be
       compelled; and (4) the risk of prejudice to the party who retained the expert as a result of
       the mere fact of retention.

Long Term Capital Holdings, L.P. v. United States, No. 01-CV-1290 (JBA), 2003 WL




       12
         A more rapid deterioration of the vests due to the type of care given to the vests and
conditions under which they were stored may not be readily apparent through mere visual
examination of the vests.

                                                -10-
21269586, at *2 (D. Conn. May 6, 2003) (citations and internal quotations omitted).13

       1. Exceptional Circumstances Exception

       In order to bypass the protection offered by Fed. R. Civ. P. 26(b)(4)(D), Plaintiff must

demonstrate the existence of “exceptional circumstances.” Rule 26(b)(4)(D)(ii). Exceptional

circumstances “may exist when a non-testifying expert’s report is used by a testifying expert as

the basis for an expert opinion, or where there is evidence of substantial collaborative work

between a testifying expert and a non-testifying expert.” Long Term Capital Holdings, 2003 WL

21269586, at *2 (citations omitted). In the Long Term Capital case, the court permitted limited

depositions of the non-testifying experts who “prepared all of the quantitative analysis that was

included in the expert reports” and “drafted portions of the expert reports” and “presented

substantive analysis and conclusions to the [t]estifying [e]xperts.” 2003 WL 21269586 *1. See

also Derrickson v. Circuit City Stores, Inc., No. DKC 95-3296, 1999 WL 1456538 *7 (D. Md.

Mar. 19, 1999) (requiring the disclosure of expert’s assistant’s work where such work was relied

upon by the expert and incorporated into tables in his report). In Derrickson, the court found

that the defendant was unable to properly cross-examine the expert until defendant understood

how the expert’s non-testifying assistant manipulated the data the expert relied upon. Id.

        In the case of collaboration, the non-testifying expert can be deposed to determine

whether the work that formed the basis of the testifying expert’s opinion was performed in a

competent manner and if reliance on such work is common. Dura Auto. Sys. of Ind., Inc. v. CTS

Corp., 285 F.3d 609, 613 (7th Cir. 2002). In the Dura Automotive case, the plaintiff’s expert



       13
         The Long Term Capital quote references Rule 26(b)(4)(B), which was later renumbered
(D) and (E) . Fed. R. Civ. P. 26 (2010 Amendments).

                                               -11-
relied on work performed by [non-testifying] employees of his consulting firm when he

formulated his opinions. 285 F.3d at 611-612. Affidavits from the non-testifying employees

were subsequently submitted to validate the reliability of the models used by these employees

but the court characterized these affidavits as expert reports and excluded them nor was the

expert permitted to testify. See also Herman v. Marine Midland Bank, 207 F.R.D. 26, 30-32

(W.D.N.Y. 2002) (permitting deposition of non-testifying expert where there was “substantial

collaborative work” between testifying and non-testifying experts in preparation of expert

report).

           Plaintiff argues that Murray “played a role comparable to that of the assistants discussed

in Derrickson and Dura Automotive.” (Memorandum at 17.)14 This Court finds however that the

relationship between testifying experts and non-testifying experts in the Derrickson and Dura

Automotive cases is factually inapposite from the relationship between Murray and Price in this

case where both experts have provided sworn statements that they did not share any information

about the vests or otherwise collaborate.

           Plaintiff argues that “Toyobo cannot use consulting expert immunity as both a sword and

a shield whereby they disclose negative test results on vests tests by Price . . . while failing to

provide information about the larger population of vests that may have been pre-tested by




           14
         In its Motion, Plaintiff argues that “Price based his statistics and his conclusions
regarding the validity of NIJ testing protocols on the subset provided by Murray, and Price is
unable to testify as to the methods and analyses performed by Murray in putting together that
subset.” (Memorandum at 17.) These arguments based upon Murray’s alleged selection of the
subset have been discredited by Toyobo’s assertion that it was counsel rather than Murray who
selected the subset. (Opposition at 2 n.1.)

                                                  -12-
Murray . . . .” (Memorandum at 19-20.)15 See S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir.

1997) (“The prohibition against selective disclosure of confidential materials derives from the

appropriate concern that parties do not employ privileges as a sword and as a shield.”) Plaintiff

asserts that in the instant case “[t]he validity of the opinion Price offers based on the failure rates

of the aramid vests he tested could depend on the representativeness of those vests as compared

to vests generally used for ballistic protection, i.e., certified, non-recalled, non-expired vests.”

(Memorandum at 11 (emphasis added)).16 Furthermore, background information about the vests

“necessarily relate[s] to the foundation and basis of Price’s opinions” and is required by Plaintiff

for cross-examination of Price and preparation of its own experts. (Id.)17

       Toyobo asserts however that “[b]ecause Mr. Price’s opinions relate only to the protocols

utilized by the Government to test used vests as part of its Body Armor Safety Initiative

(“BASI”) (rather than performance of the vests themselves), he neither needed to, nor did he,

rely upon or consider the selection and sampling of the vests he tested.” (Opposition at 2; Price

Declaration ¶13.) See also Murray Declaration ¶¶7, 9 (stating that any work he performed was


       15
         Plaintiff overlooks the fact that Price did not rely on Murray’s pre-test results and in
fact was not even privy to such results. (Price Declaration ¶7.)
       16
         Plaintiff asserts that “one-third of all the panels tested by Price, . . ., were expired.”
(Memorandum at 7 n.7.) During the hearing, Toyobo’s counsel pointed out that while 33% of
the non-Zylon vests tested by Price were out of warranty, 25% of the Zylon vests tested by the
Untied States were out of warranty. (December 4, 2012 hearing.) Plaintiff also notes that
several of the vests tested “were Second Chance models that Mr. Price had previously opined
were poorly designed, one model was recalled, and one model never was certified by the NIJ.”
(Response at 1 n.1.) This information may be used by Plaintiff to challenge Price’s test results.
       17
          Plaintiff argues that it is not “‘seek[ing] to build its own case’ with Murray’s work, but
instead intends to use it to expose the unscientific and faulty methodology Toyobo used to select
the subset of vests tested by Price and the resulting unsound foundation of Price’s opinions.”
(Memorandum at 19); see Derrickson, 1999 WL1456538, at *6.

                                                 -13-
on behalf of Toyobo’s counsel and disclosed exclusively to counsel and not to Price.) Toyobo

concludes that “[w]hether Mr. Price should have relied upon or considered the sampling and the

selection process used by Toyobo’s counsel is - at best- fodder for cross examination readily

available to the Government already.” (Opposition at 2.)18

       Plaintiff candidly admits that it wants to depose Murray and obtain his test results to

impeach Price’s conclusions in his report. Plaintiff asserts that Price relied on Murray’s test

results without one shred of evidence to support its assertion. Both Murray and Price in their

declarations deny any sharing of data of the tested vests. The undersigned finds that even

assuming arguendo Plaintiff is correct that the vests tested by Price were “cherry-picked,” the

Plaintiff had the opportunity to view the vests and can challenge Price’s conclusions by way of a

Daubert hearing, his deposition and by cross-examination if Price testifies at trial. In the

absence of any evidence suggesting that Price collaborated with Murray or that Price relied upon

or used Murray’s test data, Plaintiff has not shown the exceptional circumstances to depose

Murray or require him to produce his test results.

       This Court finds however that while Price did not rely on any testing that Murray

performed or otherwise collaborate with him, what Murray did with the vests in terms of storage

and care conditions may have affected the results obtained by Price. Putting these conditions

within Murray’s control effectively precludes Plaintiff from obtaining information [regarding

storage and care], pursuant to a claim of consulting expert immunity, when these are factual

inquiries that would normally be disclosed during discovery. This Court finds that with regard to



       18
          Toyobo focuses its argument on the sampling and selection processes, which involve
legal strategy and trial preparation.

                                                -14-
facts about the storage and care of the vests by Murray, the Plaintiff is entitled to obtain such

information under the exceptional circumstances exception to consulting expert immunity

because it is “impracticable for the [Plaintiff] to obtain [these] facts . . . on the same subject by

other means.” See Fed. R. Civ. P. 26 (b)(4)(D)(ii). Such information should be provided to the

United States in the form of a sworn declaration by Murray.19




DATE: December 18, 2012                                 ______________/s/___________________
                                                        ALAN KAY
                                                        UNITED STATES MAGISTRATE JUDGE




       19
         Counsel for Toyobo has indicated repeatedly that it selected the vests for testing by
Price. The Price Declaration states that “[he] understand[s] that the used Kevlar vests [he] tested
were obtained for [him] by counsel for Toyobo.” (Price Declaration ¶6.) For purposes of
making a more complete record in this case, the Court directs Murray to confirm in his sworn
declaration that he did not select the vests that were provided to Price.

                                                 -15-
