WHEELING, W.Va. (Legal Newsline) - Pittsburgh asbestos lawyer Robert Peirce must deliver documents about radiologist Ray Harron to CSX Transportation for the railroad's racketeering and fraud suit, a judge has ruled.
On Jan. 19, U.S. Magistrate Judge James Seibert of West Virginia denied a motion to protect the documents from discovery, finding Peirce's firm didn't show they fell within the scope of attorney work product.
"Just because the documents exist in an attorney's file cabinet or inbox does not mean those documents get blanket protection," Seibert wrote.
CSX alleges that Peirce and colleagues Louis Raimond and Mark Coulter conspired with Harron, of Bridgeport, W.Va., to fabricate diagnoses for asbestos lawsuits.
Seibert wrote that "while it is clear that the firm and lawyer defendants used this doctor to make diagnoses of asbestosis or other illnesses in the underlying actions, this alone does not determine whether the records and correspondence created pursuant to that work arrangement are protected as attorney work product."
"The underlying idea behind the work product protection rule is that the mental processes, legal theories and conclusions are protected so that an attorney has the ability to adequately prepare and analyze the case," he wrote. "Here, the documents merely request that the doctor perform an analysis, and this plain request cannot be said to be protected work product.
"Without these materials, it might be impossible for plaintiff to prove that defendants made intentional and fraudulent misrepresentations about the diagnoses."
He even ordered production of a few documents that he identified as work product, ruling that an exception for fraud allegations applied.
"Plaintiff has provided enough information that could establish some violation was ongoing or about to be committed when the work product was prepared," he wrote. "While the court cannot be certain, the documents have the possibility of containing information that would impeach the testimony of the lawyer accused of misconduct, fraud or lack of knowledge."
CSX sued Peirce, his firm, Raimond, Coulter and Harron in 2005.
U.S. District Judge Frederick Stamp granted summary judgment to defendants in 2009, finding a statute of limitations had run out.
His action rendered the dispute over the Harron documents moot, temporarily.
In late 2010, judges of the U.S. Court of Appeals for the Fourth Circuit in Richmond remanded the case to Stamp with instructions to let CSX amend the complaint.
CSX amended the complaint last year and the document dispute resumed.
Stamp referred it to Seibert, who ruled that a court can permit discovery relating to any matter that reasonably could lead to other matter that bears on any issue in the case.
He wrote that courts have allowed broader discovery in these kinds of cases, partially in response to an opinion of District Judge Janis Jack of Texas.
In 2005, Jack wrote that doctors, lawyers and X-ray companies schemed to manufacture diagnoses for money.
Seibert wrote, "Furthermore, the other facts of this case mandate that this court must allow broad discovery because here plaintiff's claims involve fraud and conspiracy. Where a conspiracy is alleged, the scope of discovery may include documents that predate or postdate the conduct immediately giving rise to the legal action.
"The documents withheld under claims of attorney client privilege merely state the name of the client and that the firm is representing that client."
He wrote that the documents contain other information that couldn't be considered confidential, such as the fact that CSX employed certain clients.
He wrote that any party can file objections to the order with Stamp by Feb. 2.