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petitioner. Also there is no indication that respondent's
lawyers were involved in the administrative process at the time
the independent expert was hired and/or the time the independent
expert issued the expert report. Under those circumstances, we
are unable to find that the expert report was prepared in
anticipation of litigation or at the direction of respondent's
legal representative. Therefore, the expert report would not be
protected under the work product doctrine.
Accordingly, the outcome of this discovery dispute would be
the same if we followed rule 26(b)(4)(B) or our usual discovery
standards under the work product doctrine. That is so because
the expert report in question did not meet the anticipation of
litigation or in preparation for trial requirement of rule
26(b)(4)(B) or the work product doctrine. Because rule
26(b)(4)(B) is not a rule of evidence and because it would not
change the outcome of this case, there is no need to decide
whether this Court should adopt, as argued by respondent, those
principles into this Court's Rules of Practice and Procedure.
Respondent has not established that the expert report is in
any way privileged. Nor has respondent argued that the expert
report is irrelevant and/or that the expert report is not
reasonably calculated to lead to the discovery of admissible
evidence. Accordingly, petitioner's motion to compel production
of the expert report will be granted.
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