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NEIGHBORS FOR GOOD NEIGHBORS, LLC v. ADKINS ENERGY LLC

United States District Court, N.D. Illinois, Western Division


August 4, 2005.

NEIGHBORS FOR GOOD NEIGHBORS, LLC, an Illinois limited liability corporation, Plaintiff,
v.
ADKINS ENERGY LLC, a Delaware limited liability corporation, Defendant.

The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is before the court on Plaintiff's June 22, 2005, Motion for a Protective Order Regarding the Deposition of Its Consulting Expert. For the following reasons, Plaintiff's Motion is granted in part and denied in part.

I. FACTS

  Plaintiff asserts that it retained Dr. Edward Cooney as its consulting expert "shortly after the complaint was filed in this case on May 9, 2003" and maintains that Dr. Cooney is not subject to discovery because he is a non-testifying expert under Federal Rule of Civil Procedure 26(a)(2). (See Pl.s' Reply, at 1). Plaintiff's counsel further certifies that "Dr. Cooney's initial work on this case for NFGN was performed in early June 2003 and his first meeting with [counsel for NFGN] was on June 13, 2003." (Id. at Ex. 1). Finally, Plaintiff states Dr. Cooney has "not done any work on this case other than as a consulting expert." (Id.).

  At this juncture, Plaintiff has not named Dr. Cooney as a fact witness, nor as a testifying expert. Plaintiff admits, however, that Dr. Cooney received and forwarded odor complaints (in the form of e-mails from NFGN members) to Defendant and the Illinois EPA and sat in on technical meetings with Defendant and the Illinois EPA. (See Pl.'s Reply, at 2). Plaintiff maintains that Dr. Cooney did not lose his consulting expert status by doing so because the court and the parties agreed that Dr. Cooney would receive and transmit odor complaints and participate in communications with the IEPA per the court's Agreed Stay Order.*fn1

  Defendant argues that it is entitled to seek discovery from Dr. Cooney regarding: (1) facts he knew and opinions he held prior to June 13, 2003; (2) communications he had with NFGN members regarding their odor complaints; (3) "witness statements collected by Dr. Cooney"; (4) "letters submitted to Dr. Cooney"; (5) and "other documents" Dr. Cooney "has reviewed in the course of his consulting engagement."*fn2 (Def.'s Resp., at 3). Defendant also states that sworn testimony form Dr. Cooney is the only way to "check" what was discussed by Dr. Cooney and the NFGN complainants. (Id. at 4).

  II. Analysis

  Under Federal Rule of Civil Procedure 26(a)(2), a non-testifying expert is not subject to discovery except upon a showing of "exceptional circumstances." The party seeking discovery bears the burden of proving that exceptional circumstances exist, such as showing equivalent information is unavailable, a condition is no longer observable, or the cost of reconstruction is prohibitive. See Braun v. Lorillard, Inc., 84 F.3d 230, 236 (7th Cir. 1996); Eliasen v. Hamilton, 111 F.R.D. 396, 401-02 (N.D. Ill. 1986). Rule 26(a)(2) protections are limited, however, as the rule only "applies to facts known and opinions held directly by the non-testifying expert himself and does not independently reach any documents or things consulted or collected by the expert." Terre Haute Warehousing Serv., Inc. v. Grinnell Fire Prot. Systs., Co., 193 F.R.D. 561, 566 (S.D. Ind. 1999). In addition, because Dr. Cooney acted as both an expert consultant, and possibly outside of his consultant role under the court's Agreed Stay Order, the court must also look at each type of discovery Defendant seeks from Dr. Cooney to decide if the discovery falls outside of Rule 26(a)(2) protections.

  As an initial matter, the court accepts Plaintiff's counsel's representations (see Ex. 1 to Pl.s' Reply) that Plaintiff retained Dr. Cooney as its consulting expert prior to June 13, 2003, and finds Defendant is not entitled to discovery from Dr. Cooney prior to June 13, 2003.

  Second, this court all "documents or things consulted or collected" by Dr. Cooney are not off limits from discovery by Defendant simply because they were used by a consulting expert. This finding, however, does not mean Defendant is entitled to question Dr. Cooney about the documents and/or the basis of his opinions.

  The real issue is whether Defendant is entitled to discovery of Dr. Cooney's communications with NFGN members regarding their odor complaints. The court does not accept Plaintiff's argument that all of Dr. Cooney's activities under the Agreed Stay Order necessarily fall within the protection of Rule 26(a)(2) because the "Court blessed Dr. Cooney as on of NFGN's expert who would receive and transmit odor complaints."*fn3 (Pl.'s Reply, at 2). The court does not find that the opposite conclusion is true either. Dr. Cooney was and still is engaged as a consulting expert, so the facts known and opinions held by Dr. Cooney retain some protection under Rule 26. The court, then, must carefully balance the parties' rights and interests and parse Dr. Cooney's protected consultant work from any unprotected communications with third parties to determine the proper scope of a protective order, keeping in mind the policy considerations underlying Rule 26.

  Defendant's Response provides the court with a vague understanding of why it seeks to depose Dr. Cooney. Though Defendant argues exceptional circumstances warrant Dr. Cooney's deposition because "[t]he only way for Adkins to `check' what was discussed [by NFGN members and Dr. Cooney] is to inquire of both Dr. Cooney and the complainant," the thrust of Defendant's argument seeks discovery regarding Dr. Cooney's involvement as a liaison between NFGN and Defendant and the Illinois EPA; not as a consultant. (Def.'s Resp., at 4). According to its submitted brief, Defendant seeks to discover "whether Dr. Cooney communicated with any of the NFGN members regarding their complaints" and "whether the statements made to Dr. Cooney regarding odor complaints were consistent with other statements made by the same individuals." (Def.'s Resp, at 3-4).

  Because it appears that Dr. Cooney did not receive and forward complaints from NFGN members in the capacity of a consulting expert as contemplated by Rule 26, Defendant is entitled to some discovery regarding Dr. Cooney's communications with third parties about odor complaints. Allowing this very limited amount of discovery to go forward at this time addresses Defendant's expressed concerns while still protecting Plaintiff's interest in obtaining the expert advice needed to evaluate its case. Thus, Plaintiff's request for protective order against any deposition is unwarranted given the court's limitations on Dr. Cooney's deposition, as set forth in this Opinion and Order.

  Because of the limited nature of the court's holding, Defendant is also cautioned not to use its deposition of Plaintiff's consulting expert as a back door approach to learning Dr. Cooney's "opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; [and/or] the qualifications of the [expert]." Fed.R.Civ.P. 26(a)(2)(B).

  III. Conclusion

  Accordingly, Plaintiff's Motion for a Protective Order Regarding the Deposition of Its Consulting Expert is granted in part and denied in part. Dr. Cooney may be questioned about any statements he made to third parties and communications he received about odor complaints.


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