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Arkansas River Power Authority v. Babcock & Wilcox Power Generation Group, Inc.

United States District Court, D. Colorado

January 15, 2016

ARKANSAS RIVER POWER AUTHORITY, Plaintiff,
v.
THE BABCOCK & WILCOX COMPANY, f/k/a BABCOCK & WILCOX POWER GENERATION GROUP, INC., Defendant.

ORDER ON PRETRIAL MOTIONS

Nina Y. Wang, United States Magistrate Judge

This matter is before the court on six pretrial motions:

(1) Plaintiff’s Motion to Strike Defendant’s Disclosure of Non-Retained Experts (“Plaintiff’s Motion to Strike Non-Retained Experts”) [#122, filed September 4, 2015];

(2) Plaintiff’s Motion to Compel Production of Design Standards (“Plaintiff’s Motion to Compel”) [#128, filed September 17, 2015];

(3) Defendant’s Motion to Restrict Access to a Portion of Exhibit 1 in Support of ARPA’s Motion to Compel Production of Design Standards [#151, filed October 21, 2015];

(4) Defendant’s Motion to Restrict Access to a Portion of Defendant’s Response to ARPA’s Motion to Compel Production of Design Standards [#160, filed October 29, 2015] (collectively, “Defendant’s Motions to Restrict”);

(5) Non-Party Syncora Guarantee Inc.’s Brief Pursuant to the Court’s November 15, 2015 Courtroom Minutes/Minute Order (“Syncora’s Second Motion for Protective Order”) [#168, filed December 2, 2015]; and

(6) Arkansas River Power Authority’s Brief Pursuant to the Court’s November 25, 2015 Courtroom Minutes/Minute Order (“ARPA’s Motion for Protective Order”) [#169, filed December 2, 2015].

These motions were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), the Order of Reference dated May 13, 2014 [#19], the Reassignment dated February 9, 2015 [#63], and the memoranda dated September 8, 2015 [#123], September 21, 2015 [#131], October 27, 2015 [#159], October 29, 2015 [#162], and January 5, 2016 [#179]. This court held oral argument on November 2, 2015 on Plaintiff’s Motion to Strike Non-Retained Experts and Plaintiff’s Motion to Compel, and took those motions under advisement at that time. In addition, the court entertained argument with respect to Syncora’s Second Motion for Protective Order and ARPA’s Motion for Protective Order during an informal discovery conference held on November 25, 2015. Furthermore, a number of these motions raise issues that have been previously considered by the court. Having now reviewed completed briefing, considered the applicable case law, and being fully advised of the premises, the court hereby GRANTS IN PART and DENIES IN PART Plaintiff’s Motion to Strike Non-Retained Experts [#122]; DENIES Plaintiff’s Motion to Compel [#128]; DENIES Defendant’s Motions to Restrict [#151 and #160]; DENIES Syncora’s Second Motion for Protective Order [#168]; and DENIES ARPA’s Motion for Protective Order [#169].

BACKGROUND AND PROCEDURAL HISTORY

The factual background of this action has been recounted in prior court orders, and therefore, will not be repeated in detail here. See, e.g., [#134]. This action arises from an unsuccessful relationship between Plaintiff Arkansas River Power Authority (“Plaintiff” or “ARPA”) and Defendant The Babcock & Wilcox Company (“Defendant” or “B&W”) on a project known as the Lamar Repowering Project (“LRP”), which intended to convert a natural-gas electric generation facility into a coal-firing one. [#80 at ¶ 41]. Plaintiff contends that the boiler provided by B&W failed to work in a manner that allowed it to meet emission standards and consequently, the LRP became non-operational. B&W has vigorously disputed that it is liable for the boiler’s failure or that it is solely responsible for damages arising from the LRP’s non-operational status. The Parties have sought court intervention for a number of discovery disputes, and this latest set of motions involve technical information and experts who are expected to address such technical issues of both liability and damages at trial.

The Scheduling Order in this case, which has been amended several times to provide for extensions to deadlines, provided that information as required by Rule 26(a)(2) would be provided concurrently with the disclosure of the experts. [#31 at 15]. During the course of discovery, B&W identified the following individuals as “non-retained” experts: Mikhail Maryamchik; John Bullock; Vijay Parekh; Tom Garabedian; Perry Brescilli; and Roger Kleisley, none of whom proffered an expert report pursuant to Rule 26(a)(2)(B).[1] ARPA continues to seek, as it has done in the past, disclosure of additional design documents [#35].

ANALYSIS

I. Applicable Law

A. Disclosures for Non-Retained Experts

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to all other parties the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence, and governs whether an individual anticipated to give expert testimony is required to propound a written expert report or may provide an alternative disclosure. Fed.R.Civ.P. 26(a)(2)(A)-(C). A retained or specially employed expert must provide a report that contains:

(1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of all publications authored in the previous 10 years; and (5) a statement of the compensation to be paid for the study and testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B). Pursuant to Fed.R.Civ.P. 26(a)(2)(C), expert witnesses not required to provide a written report by Fed.R.Civ.P. 26(a)(2)(a) must, absent contrary stipulation or court order, provide a disclosure stating the “subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2)(C)(i-ii).

This court has traditionally employed a burden-shifting procedure for determining whether the requirements of Rule 26(a)(2) have been met. See Carbaugh v. Home Depot U.S.A., Inc., Civil Action No. 13-cv-02848-REB-MEH, 2014 WL 3543714, *2 (July 16, 2014). The party seeking to strike the witness bears the initial burden of showing that the disclosing party failed to comply with Rule 26(a)(2)(B). Id. Then the burden shifts to the disclosing party to demonstrate that the witness was not required to provide a report as contemplated by Rule 26(a)(2)(B). Id. The substance of the testimony, rather than the status of the expert, will dictate whether a report under Rule 26(a)(2)(B) is required. Id. at *3.

A violation of Rule 26(a)(2) is addressed by the court pursuant to Rule 37(c) of the Federal Rules of Civil Procedure. Rule 37(c)(1) of the Federal Rules of Civil Procedure provides:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of ...

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