United States District Court, C.D. Illinois
NATURAL RESOURCES DEFENSE COUNCIL, INC.; RESPIRATORY HEALTH ASSOCIATION; AND SIERRA CLUB, INC., Plaintiffs,
ILLINOIS POWER RESOURCES GENERATING, LLC, Defendant.
SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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
(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
(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 ...