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Natural Resources Defense Council, Inc. v. Illinois Power Resources Generating, LLC,

United States District Court, C.D. Illinois

July 13, 2018

NATURAL RESOURCES DEFENSE COUNCIL, INC.; RESPIRATORY HEALTH ASSOCIATION; AND SIERRA CLUB, INC., Plaintiffs,
v.
ILLINOIS POWER RESOURCES GENERATING, LLC, Defendant.

          OPINION

          TOM SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiffs' Motion to Compel Production of Communications between Defendant's Testifying Experts and their Staff (d/e 177) (Motion). Plaintiffs ask the Court to compel Defendant Illinois Power Resources Generating, LLC (Illinois Power or IPRG) “to produce documents reflecting communications each of its testifying experts had with his/her employees, staff, and /or assistants regarding his/her study or testimony for the remedy phase of this case (hereafter expert-staff communications).” For the reasons set forth below, the Motion is ALLOWED in part and DENIED in part.

         BACKGROUND

         The District Court found Illinois Power liable for violations of the Clean Air Act because the smoke stack emissions from the Edwards Power Plant (Plant) exceeded the limits on opacity caused by particulate material in the emissions. Opinion and Order entered August 23, 2016 (d/e 124), at 49. The matter is set for a trial on remedies on March 4, 2019. Text Order entered December 14, 2017. The parties are engaged in discovery for the remedy phase of the matter.

         On May 15, 2018, the Plaintiffs served notices of depositions duces tecum for each of Illinois Power's testifying experts (Notices). The Notices directed the experts to produce documents, including all communications with anyone other than Illinois Power's attorneys concerning the expert's opinions prepared for this case, which would include expert-staff communications. See Motion, Exhibits A and B, Notices for Illinois Power Experts Robert M. Lewis and Tony Schroeder, Exhibit A, ¶2. Illinois Power objected and asserted the work product privilege for expert-staff communications. See Motion, Exhibits C-I, Defendant's Objections to Notices and Correspondence Between Counsel. Plaintiffs now move to compel production of expert-staff communications with respect to Illinois Power experts Robert M. Lewis and Tony Schroeder. Plaintiffs ask the Court to order similar production of expert-staff communications in its responses to Notices for Illinois Power's other testifying experts Dr. Anne Smith, Dr. Lucy Fraiser, Mr. Thomas Keeler, and Mr. Ed Cichanowicz.

         ANALYSIS

         The Federal Rules of Civil Procedure prescribe the limits of discovery from testifying experts:

(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) 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 testimony;
(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 ...

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