The plaintiff sought an order to compel production of records from a non-party assessment company, HVE Healthcare Assessments, and its retained expert, Dr. Joel Finkelstein, and to permit questioning of HVE.
The plaintiff argued that litigation privilege should yield to the principle of fairness, citing a reasonable suspicion that HVE improperly influenced Dr. Finkelstein's report, particularly concerning the summarization of surveillance evidence and the delayed disclosure of a conflicting expert report.
The court found a factual foundation for this suspicion, noting inconsistencies and the defendants' refusal to answer questions regarding HVE's involvement.
The court ordered the defendants to produce all relevant records from HVE and Dr. Finkelstein, excluding solicitor-client privileged communications, as these were deemed foundational documents not protected by litigation privilege under the circumstances.
The defendants were also ordered to pay the plaintiff's costs.
