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Kolter v. Ryan3/11/2005
NOT TO BE PUBLISHED
OPINION AND ORDER
GRANTING ORIGINAL ACTION IN PART
This matter is before the Court on a petition for writ of mandamus and/or prohibition filed by petitioner, Scott Kolter, and the response of the real party in interest, CSX Transportation, Inc. Kolter, plaintiff to a personal injury action against CSX, his employer at the times referred to in the complaint, seeks an order from this Court that would direct the respondent trial court to amend two discovery orders or prohibit it from enforcing the orders.
The relevant facts are as follows. Kolter moved the trial court to compel CSX to produce the raw test data of Dr. Barry Gordon, a neurologist with a specialty in neuropathology who conducted a court-ordered independent medical examination (IME) of Kolter, upon CSX's request. The trial court signed an order tendered by CSX requiring the parties to exchange the raw test data from all neuropsychological tests administered to Kolter.
CSX produced Dr. Gordon's report and raw test data. Kolter produced the report and raw test data prepared by its retained expert, Dr. Martine RoBards, but moved for a protective order against the production of similar information prepared by Dr. Lisa Morrow, another neuropsychologist whom Kolter also consulted and whom he initially named as a testifying expert but had since withdrawn from his expert witness list. Kolter argued that Dr. Morrow's data and report were shielded from discovery by the work product doctrine pursuant to CR 26.02(4)(b). CSX moved to compel production, arguing that it was entitled to discovery of a like report of a previous examination of Kolter for the same condition after having turned over Dr. Gordon's report and data to Kolter pursuant to CR 35.02. Following a hearing, the trial court agreed with CSX. Kolter moved to amend, alter or vacate, arguing that Dr. Morrow had not prepared a report and that CR 35.02 does not require the production of raw data. The motion was denied.
Kolter, relying on Bender v. Eaton, claims entitlement to a review of the merits of his original action by arguing that the forced discovery of material that is privileged would cause him and the administration of justice irreparable harm and that this Court must protect his work product from wrongful disclosure.
On the merits, Kolter claims that his request for Dr. Gordon's report and raw data was made pursuant to CR 26, not CR 35.02. He argues that CSX previously indicated in its Disclosure of Expert Witnesses that it would produce the report, which is information that CSX is required to provide under CR 26 since it has designated Dr. Gordon as a testifying expert. Kolter goes on to argue that the mere fact that CSX satisfied its CR 26 obligation by submitting Dr. Gordon's report does not then transform his request into one made pursuant to CR 35.
Kolter asserts that, pursuant to CR 26, Dr. Morrow's report and data is work product that is not discoverable unless CSX could show a substantial need for the materials and the inability to obtain a substantial equivalent by other means without undue hardship which, he contends, it has not. In the alternative, Kolter argues that, if CR 35.02 applies, it allows, by its very language, for the production of a report, but not that of raw data. In support of his argument, Kolter relies on Newsome v. Lowe and Morrow v. Stivers.
In response, CSX contends that Kolter has failed to demonstrate irreparable harm because the information that it seeks is not a trade secret or of a proprietary nature, and the only harm may be that "Dr. Morrow's findings did not support petitioner's injuries." CSX further argues that the su
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