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.
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."
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
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).
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
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