United States District Court, S.D. Florida
ORDER REQUIRING PRODUCTION OF PRE-LITIGATION SERVICE
AGREEMENT RELATING TO PLAINTIFFS' EXPERT AFTER IN CAMERA
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE
CAUSE was previously before the Court upon Defendant,
Metropolitan Casualty Insurance Company's
("Defendant") Motion to Compel Plaintiffs to
Respond to Defendant's Initial Discovery
("Motion") [DE 11]. This matter was referred to the
undersigned by United States District Judge Kenneth A. Marra.
See DE 8.
Court held a hearing on the Motion on January 2, 2020. The
Court then promptly entered an Order [DE 23] on the Motion
and required, in relevant part, that Plaintiffs, Robert
Heller and Carol Heller ("Plaintiffs"), submit for
in camera review the agreement between Plaintiffs
and Insurance Litigation Group, P.A., pertaining to the
services of Baruch Bar-Chaim. On January 3, 2020,
Plaintiffs' counsel submitted the agreement for in
camera review to chambers, as required.
Court has carefully reviewed the one-page document. In open
court, Plaintiffs' counsel objected to producing the
document on the basis of attorney-client and/or work-product
privilege. He explained that the agreement at issue is
between Plaintiffs and their law firm, Insurance Litigation
Group, for pre-litigation services. According to
Plaintiffs' counsel, the agreement provides Mr.
Bar-Chaim, who is a loss consultant and not a public
adjuster, employed by the law firm, with a 10%-prelitigation
fee for his services. Plaintiffs' counsel represented
that Mr. Bar-Chaim has already fulfilled his contractual
obligations. Plaintiffs' counsel further explained that
Plaintiffs will rely on Mr. Bar-Chaim as an expert witness at
trial and that he will also testify regarding damages.
the Court finds that the agreement at issue is relevant
pursuant to Federal Rule of Civil Procedure 26(b)(1). The
document at issue specifies the financial remuneration to
Plaintiffs' expert witness, Mr. Bar-Chaim. The law is
clear that the amount of money an expert witness has been
paid or will be paid is relevant to the fact-finder's
credibility determination. See Pattern Civ. Jury
Instr. 11th Cir. 3.6.2 (2019) ("When a witness is being
paid for reviewing and testifying concerning the evidence,
you may consider the possibility of bias and should view with
caution the testimony of such witness where court testimony
is given with regularity and represents a significant portion
of the witness's income."). Moreover, Federal Rule
of Civil Procedure 26(a)(2)(B)(iv) explicitly requires that
expert witness reports include a "statement of the
compensation to be paid for the study and testimony in the
case." Case law additionally establishes the relevance
of an expert witness's compensation. See, e.g.
Buckley Towers Condo., Inc. v. QBE Ins. Corp., No.
07-22988-CIV, 2008 WL 5505415, at *2 (S.D. Fla. Oct. 21,
2008) ("Introduction of [expert witness's]
compensation is widely recognized as proper
impeachment."). In light of Plaintiffs'
counsel's representation that Plaintiffs plan on calling
Mr. Bar-Chaim as an expert witness at trial and in light of
counsel's representation that the agreement at issue
provides Mr. Bar-Chaim with 10% of Plaintiffs' proceeds
of the case, the agreement is clearly relevant.
Plaintiffs did not raise any privilege objections in response
to Defendant's Request for Production #21, which sought
"[a] 11 documents, by from and/or to any public
adjuster, loss consultant, roofer, engineer, or appraiser
concerning the subject matter of the Complaint."
Plaintiffs also failed to produce a privilege log. Therefore,
all objections have been waived pursuant to Federal Rule of
Civil Procedure 33(b)(4) and Local Rule 26.1(e). Turner
v. Trans Union, LLC, No. 18-CV-80938, 2019 WL 2709000,
at *l (S.D. Fla. June 21, 2019); Kennedy v.
Batmasian, No. No., 15-81353-CIV, 2016 WL 824571, at *2
(S.D. Fla. Feb. 26, 2016) ("Failure to timely object to
discovery requests waives a party's objections to the
requests unless good cause has been shown.").
even if the attorney-client privilege did initially protect
the agreement and had not been waived by Plaintiffs'
failure to properly object to discovery and failure to
produce a privilege log, Plaintiffs would have waived any
privilege by putting Mr. Bar-Chaim's credibility at issue
in the case. Bivins v. Rogers, No. 15-CV-81298, 2017
WL 1535110, at *3 (S.D. Fla. Apr. 27, 2017) ("a party
generally waives the attorney-client privilege if the party
"injects the very issue which requires testimony from
his attorney.") (quoting Baratta v. Homeland
Housewares, LLC, 242 F.R.D. 641, 643 (S.D. Fla. 2007)).
As stated above, one factor to consider in determining an
expert witness' credibility is how much that expert is
being paid by the party who retained the expert.
Plaintiffs' counsel represented in open court that
Plaintiffs intended to call Mr. Bar-Chaim as an expert
witness at trial.
"retainer agreements are not treated as protected work
product in federal court." Eldredge v. Edcare Mgmt.,
Inc., No. 12-61984-CIV, 2013 WL 12131898, at *l (S.D.
Fla. Apr. 2, 2013). However, even if the agreement at issue
were protected by the work-product doctrine, "work
product prepared in anticipation of litigation by an attorney
or his agent is discoverable only upon a showing of need and
hardship", Kehle v. USAA Cas. Ins. Co., No.
17-80447-CV, 2018 WL 2435176, at *4 (S.D. Fla. May 30, 2018),
objections overruled, No. 17-80447-CIV, 2019 WL
1429674 (S.D. Fla. Mar. 25, 2019), and Defendant has made a
sufficient showing of need and hardship.
on the foregoing, it is hereby ORDERED that
Plaintiffs shall produce the agreement they have submitted
for in camera review to Defendant on or before
January 9, 2020. If Baruch Bar-Chaim's deposition is set
for a date prior to January 9, 2020, Plaintiffs shall produce
the agreement to Defendant at least 24 hours before the
 The Court is in no way making a
finding that the attorney-client privilege would necessarily
ever protect such an agreement. Moreover, documents that
simply contain factual information pertaining to
attorney's fees are not protected by the attorney-client
privilege. Embroidme. com, Inc. v. Travelers Prop. Cas.
Co. of Am., No. 12-81250-CIV, 2013 WL 12094636, at *2
(S.D. Fla. Aug. 9, 2O\3); Armor Screen Corp. v. Storm
Catcher, Inc., No. 07-81091-CIV, 2009 WL 2767664, at *2
(S.D. Fla. Aug. 31, 2009) ("the communication of factual
information, such as reports containing a litigation's
status, fee agreements, and retainer agreements are generally
not protected by the attorney-client privilege")
(citing O'Neal v. United States,258 F.3d 1265,