United States District Court, D. Colorado
CHRISTINE FRAPPIED, CHRISTINE GALLEGOS, KATHLEEN GREENE, JOYCE HANSEN, KRISTINE JOHNSON, GEORGEAN L ABUTE, JOHN ROBERTS, JENNIFER RYAN, ANNETTE TRUJILLO, and DEBBIE VIGIL, Plaintiffs,
AFFINITY GAMING BLACK HAWK, LLC, Defendant.
Y. WANG UNITED STATES MAGISTRATE JUDGE
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"), 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 The court also asked Plaintiffs'
counsel to submit additional information, which was then
reviewed by the court in camera.
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,
26(b)(4) governs disclosure requirements for trial
preparation materials of specially-retained experts who are
anticipated to testify at trial. 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
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
(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.
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
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 ...