The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
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")  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") ; Plaintiff's reply to the Opposition ("Reply") ; Defendants' Sur-reply to the Reply ("Sur-Reply") ; and Plaintiff's response to the Sur-Reply ("Response") . 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.)
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.)*fn1 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.
(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.)*fn2 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.)*fn3
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.)*fn4 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 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.
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."*fn5
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 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]counsel 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 ...