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Hartford Fire Insurance Company, Inc. v. Transgroup Express

July 29, 2009

THE HARTFORD FIRE INSURANCE COMPANY, INC., PLAINTIFF,
v.
TRANSGROUP EXPRESS, INC., DEFENDANT.



The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

This case is before the Court to resolve a discovery dispute arising from a case pending in the United States District Court for the District of Minnesota. The Plaintiff, Hartford Fire Insurance Company, Inc. ("Plaintiff"), moves to quash a deposition subpoena issued by Defendant Transgroup Express, Inc. ("Defendant") for the appearance in Chicago of Terrence Knight ("Knight"), a Certified Public Accountant with an office in Libertyville, Illinois. Knight was previously designated by Plaintiff as a testifying expert witness and was later re-designated as a non-testifying, consulting expert after he had submitted his expert reports and a deposition subpoena was issued. The motion to quash raises the issue of whether Defendant is barred from taking the deposition of Knight by reason of the redesignation. This Court held oral argument on July 8, 2009. For the reasons set forth below, this Court denies Plaintiff's motion to quash subpoena.

I. BACKGROUND FACTS

Because the case underlying this action is pending in the District of Minnesota and is only before this Court on Plaintiff's motion to quash Defendant's subpoena, this Court provides as background only the facts necessary to decide the motion.

A. Procedural Facts

The Minnesota case underlying this action arises from a complaint filed by Plaintiff against Defendant alleging fraud, breach of fiduciary duty, intentional and negligent misrepresentation, conversion, unjust enrichment, and civil conspiracy. On September 4, 2007, summary judgment was granted for Defendant, after which Plaintiff appealed to the United States Court of Appeals for the Eighth Circuit. See Hartford Fire Ins. Co. v. Clark, 562 F.3d 943 (8th Cir. 2009). The Eighth Circuit reversed and remanded the case to the District of Minnesota for further proceedings. Id. at 947. On May 8, 2009, the district court issued an order allowing the parties forty-nine days to complete expert discovery. On June 2, 2009, the Defendant issued a deposition subpoena for the appearance of Knight in Chicago. Plaintiff's motion to quash the subpoena followed.

B. Terrence Knight - C.P.A.

On May 4, 2007, Knight, a Certified Public Accountant with an office in Libertyville, Illinois, was disclosed by Plaintiff as a testifying expert witness. Also disclosed on that date were two expert reports written by Knight. The reports were originally produced by Knight on February 28, 2006, and May 4, 2007, respectively. Following the district court's May 8, 2009 order, Defendant notified Plaintiff of its intent to depose Knight and scheduled the deposition for June 11, 2009, in Chicago, Illinois. On May 28, 2009, after the deposition had been scheduled, Plaintiff notified Defendant via e-mail it was withdrawing Knight as a testifying expert witness and, as a result, there was no need to depose him.

Defendant issued a deposition subpoena on June 2, 2009, and notified Plaintiff the same day. On June 3, 2009, Plaintiff wrote a letter to Defendant indicating it elected not to call Knight to testify as an expert in the Minnesota action, but continued to employ him as a non-testifying trial consultant. Plaintiff contends Fed. R. Civ. P. 26(b)(4)(B) bars Defendant from deposing Knight. The letter further informed Defendant that Knight would not appear for his deposition. On June 4, 2009, Defendant gave Plaintiff notice of its intent to proceed with the deposition on the grounds it was improper to re-label Knight as a non-testifying expert after his long-standing status as a testifying expert witness and his production of two expert reports. On June 8, 2009, Plaintiff filed the present motion to quash the June 2, 2009 subpoena.

II. LEGAL STANDARDS

"A party has a general right to compel any person to appear at a deposition, through issuance of a subpoena, if necessary." CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002) (citing Fed. R. Civ. P. 30(a)). "A party may depose any person who has been identified as an expert whose opinions may be presented at trial." Fed. R. Civ. P. 26(b)(4)(A). However, "a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." Fed. R. Civ. P. 26(b)(4)(B).

A subpoena for attendance at a deposition must be issued from the court for the district where the deposition is to be taken. Fed. R. Civ. P. 45(a)(2)(B); In re subpoena issued to Nissan North America, Inc., 2003 WL 25778944, *1 (N.D. Ill. Jan. 22, 2003). A motion to quash such a subpoena must be filed and decided in the court from which the subpoena was ...


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