In Penington Painting Co. v. Cherry Painting Co., the U.S. District Court for the District of Arizona denied a motion to compel production of a draft forensic expert report, holding that a party does not waive Rule 26’s expert protections simply by relying on the results of a forensic investigation in its complaint. The ruling serves as an important reminder that discoverable forensic evidence and protected expert work product are not one and the same.
In this trade secrets and employee-poaching dispute, Plaintiff Penington alleged that Defendant Bad- a former Penington employee now working for competitor Cherry — misappropriated confidential information before his departure, relying heavily on findings from a forensic examination of Badger’s work computer performed by third-party vendor Executech. The defendants argued that because the plaintiff relied extensively on its forensic investigation to support its trade secret misappropriation claims, it could not use the investigation as both a “sword and shield” by withholding the expert’s draft report.
The court rejected that argument, explaining that if the forensic consultant ultimately testifies, Rule 26(b)(4)(B) protects draft expert reports from discovery. If the consultant remains a non-testifying expert, the report is likewise protected under Rule 26(b)(4)(D) unless the opposing party demonstrates exceptional circumstances. The court found no such circumstances because the defendants already possessed the forensic images, underlying data, Outlook files, and access to inspect the relevant hard drives, allowing them to conduct their own independent forensic analysis.
The court did leave the door open for reconsideration: if Penington ultimately retains a different testifying expert who consults with or relies on Executech’s prior work, that could trigger renewed discoverability of the draft report. The ruling is a useful illustration of how courts distinguish between “at issue” waiver arguments and the structural protections Rule 26(b)(4) affords to draft expert reports and consulting (non-testifying) experts — particularly where the requesting party already has access to the underlying source data needed to build its own competing analysis.
For eDiscovery and litigation teams, this decision reinforces the importance of carefully structuring forensic investigations and expert engagements from the outset of a case. While the underlying forensic evidence may be discoverable, Rule 26 continues to provide meaningful protection for draft expert reports and consulting expert work product when opposing parties have access to the underlying data needed to evaluate the claims independently.
Reach out to Caitlin Oyler, Counsel at CODISCOVR. Caitlin has over a decade of experience providing high-level advice to clients regarding all phases of the eDiscovery life cycle and managing high-profile document collections, reviews, and productions.
