The opinion of the court was delivered by: George M. Marovich United States District Judge
MEMORANDUM OPINION AND ORDER
The Hartford Fire Insurance Company, Inc. ("Hartford") filed a petition to quash a subpoena issued by respondent Transgroup Express, Inc. ("Transgroup"). The subpoena was served on Terrance Knight ("Knight"), who had previously been disclosed as an expert witness in a suit between the parties that is currently pending in the United States District Court for the District of Minnesota. Magistrate Judge Denlow, to whom the matter was referred, entered an order denying Hartford's motion to quash the subpoena. Hartford timely filed objections to the Magistrate's order. For the reasons set forth below, the Court adopts Magistrate Judge Denlow's opinion to the extent it is consistent with this opinion and denies petitioner's motion to quash the subpoena.
Rule 72 of the Federal Rules of Civil Procedure sets out the standard for reviewing a ruling by a magistrate judge. With respect to nondispositive matters, a district judge "must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law." See Fed.R.Civ.P. 72(a). With respect to dispositive matters, a district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." See Fed.R.Civ.P. 72(b)(3).
Although both parties seem to agree that the Court should apply the standard of review for nondispositive matters, the Court believes it should apply the standard for dispositive matters. A motion to quash a subpoena is usually a nondispositive matter; but, where, as here, the decision would dispose of the entire matter at issue in this case, the order is more properly treated as subject to de novo review. See Equal Employment Opportunity Comm'n v. Dolgencorp., Case No. 07 C 6672, 2008 WL 4542973 at *2 (N.D. Ill. April 15, 2008); In re: Administrative Subpoena Blue Cross Blue Shield of Mass., 400 F. Supp.2d 386, 388-389 (D. Mass 2005) ("Many courts have treated similar motions to enforce or quash administrative subpoenas, or the like, as dispositive motions for purposes of review where the matter involving the subpoena constitutes the entire case before the court.") (collecting cases); NLRB v. G. Rabine & Sons, Inc., Case No. 00 C 5965, 2001 WL 1772333 at *3 (N.D. Ill. Sept. 10, 2001) ("Because Judge Nolan's Report and Recommendation would be dispositive of the entire matter before the Court (that is whether to enforce the administrative subpoenas), this Court will review the May 7 ruling de novo."). Thus, the Court will review de novo the portions of Judge Denlow's ruling that Hartford has properly objected to. The Court notes, however, that it would have reached the same decision under either standard of review.
When it filed its objections, Hartford did not object to any of Judge Denlow's findings of fact. Accordingly, the Court will adopt Judge Denlow's findings of fact.*fn1
The underlying lawsuit is pending in the District of Minnesota. In May 2007, Hartford disclosed Knight as a testifying expert. Hartford also produced two expert reports written by Knight. Knight had written one of the expert reports in May 2007 and the other in February 2006. Knight wrote the February 2006 expert report in connection with separate, related litigation.
Proceedings in the underlying suit made Knight's deposition unnecessary for a period of time. In September 2007, the District of Minnesota granted summary judgment in favor of Transgroup. At some point in 2009, however, the Eighth Circuit Court of Appeals reversed and remanded. The case is once again pending in the District of Minnesota.
In May 2009, the district judge in Minnesota set a new discovery deadline for expert discovery. Transgroup noticed the deposition of Knight for June 11, 2009. On May 28, 2009, after Transgroup had noticed the deposition, Hartford informed Transgroup by email that it was withdrawing Knight as a testifying expert and would not produce him for deposition. On June 2, 2009, Transgroup served the subpoena at issue here and notified Hartford. Hartford quickly moved to quash, and the Magistrate, after hearing oral arguments and receiving briefs, denied the motion on July 29, 2009. On August 7, 2009, Hartford timely filed objections, which were fully briefed on August 26, 2009.
Rule 26 of the Federal Rules of Civil Procedure sets out the circumstances under which parties may depose an opposing party's experts. Rule 26(b)(4)(A) states that "[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) (emphasis added). Rule 26(b)(4)(B) adds:
[o]rdinarily, 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. But a party may do so only . . . on showing exceptional circumstances under which ...