Frappied v. Affinity Gaming Black Hawk, LLC

          ORDER

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on an issue regarding the appropriate scope of testimony for specially-retained experts pursuant to Fed.R.Civ.P. 26(b)(4), raised during a Telephonic Discovery Conference held July 3, 2018. See [#116]. During the deposition of Plaintiffs' specially retained statistical expert, Robert A. Bardwell, Ph.D. ("Dr. Bardwell"), ^[1]Defendant Affinity Gaming Black Hawk, LLC ("Defendant" or "Affinity Gaming") sought to inquire about calculations and analyses that Dr. Bardwell performed, which do not appear in his final expert report. The Parties appeared before the court on July 3, 2018 for a Telephonic Discovery Conference, during which each side had an opportunity to argue in support of its position^[2] The court also asked Plaintiffs' counsel to submit additional information, which was then reviewed by the court in camera.

         LEGAL STANDARD

         In 2010, in response to concerns regarding the "undesirable effects" of routine discovery into attorney-expert communications and draft expert reports, the United States Supreme Court promulgated amendments to Rule 26(a)(2) and 26(b)(4) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26, advisory committee's notes to the 2010 amendment. As recognized by many courts, the purpose of the 2010 amendments were "meant to alleviate the perceived uncertainty and rising costs associated with attorneys' limited interactions with their retained experts as a result of court opinions allowing discovery of an expert's draft reports and of all communications with counsel." Republic of Ecuador v. Bjorkman, No. 11-CV-01470-WYD-MEH, 2012 WL 12755, at *3 (D. Colo. Jan. 4, 2012), subsequently affd sub nom. Republic of Ecuador v. For Issuance of a Subpoena Under 28 U.S.C. Sec. 1782(a), 735 F.3d 1179 (10th Cir. 2013). After the 2010 amendments, a specially retained expert is generally required to provide the following: a written report that reflects a complete statement of all opinions to be presented and the basis thereof; the facts or data considered by the witness in forming the opinions; any exhibits that will be used to summarize or support the expert's opinion; the witness's qualifications, including a list of all publications authored in the previous ten years; a list of all other cases in which, during the previous four years, a witness testified as an expert in deposition or at trial; and a statement of the compensation to be paid for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). The Local Practice of this District also requires parties to disclose within the report of a specially retained expert the principles and/or methodology used by the expert in coming to his or her opinion. Civ. Case Sched. Order, http://www.cod.uscourts.gov/portals/0/documents/forms/civilforms/2014-civilcaseschedulingorder.pdf.

         Rule 26(b)(4) governs disclosure requirements for trial preparation materials of specially-retained experts who are anticipated to testify at trial.^[3] Rules 26(b)(4)(B) and (C) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. Specifically, Rule 26(b)(4)(C) protects certain communications between counsel and a specially retained expert:

Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert's study or testimony;

(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

Fed. R. Civ. P. 26(b)(4)(C). The burden of establishing whether the Rule applies lies with Plaintiffs. See Johnson v. Gmeinder, 191 F.R.D 638, 643 (D. Kan. 2000) (party invoking the protection of Rule 26(b)(4)(B) has the burden of establishing that the Rule applies). Here, Plaintiffs argue that any analyses not reflected in Dr. Bardwell's final expert report are not discoverable because they are not facts or data that the party's attorney provided which the expert considered, and because the analyses are drafts of Dr. Bardwell's final report.

         Defendant contends that the Advisory Committee Notes to the 2010 amendments to Rule 26 make clear that it may inquire as to whether Dr. Bardwell performed "alternate analyses," which were not ultimately included in the final expert report. In particular, Defendant relies upon the following statement:

Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, inquiry about communications the expert had with anyone other than the party's counsel about the opinions expressed is unaffected by the rule. Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed. These discovery changes therefore do not affect the gatekeeping functions called for by Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and related cases.

Fed. R. Civ. P. 26(a)(2)(B) advisory committee's notes to 2010 amendment ...