Rivercliff Company Inc v. Residences At Riverdale GP LLC et al

Filing 65

ORDER granting 37 Motion to Intervene by Transcriptions Inc; granting the intervenor's 37 Motion to Quash on the ground that the subpoena at issue is unduly burdensome. Signed by Judge Susan Webber Wright on 9/27/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

RIVERCLIFF COMPANY, INC.
Plaintiff
V.
RESIDENCES AT RIVERDALE GP,
LLC, ET AL.

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NO: 4:10CV00330 SWW

Defendants
ORDER
Plaintiff Rivercliff Company, Inc. (“Rivercliff”) brings this diversity action against
Residences at Riverdale, GP, LLC; Residences at Riverdale, LP; Nations Construction; and
David F. Stapleton, seeking damages and other remedies for trespass to land, breach of the duty
of an adjoining landowner to provide lateral support, and negligence. Before the Court is a
motion to intervene and quash (docket entry #37) by Transcriptions Inc., d/b/a/ Bushman Court
Reporting (“Bushman”), and Rivercliff’s response in opposition (docket entry #38). After
careful consideration, and for reasons that follow, the motion to intervene and motion to quash
will be granted.
Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure gives the issuing court
discretion to quash or modify a subpoena that requires the disclosure of privileged or protected
matter or that subjects a person to undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(ii)-(iii).
Here, Rivercliff served a subpoena upon Bushman, seeking all transcripts recording deposition
testimony by Carl Garner, a consulting engineer who has served as an expert witness in multiple
cases. Bushman reports: “Plaintiff has instructed Bushman to assemble (and apparently to re-

transcribe if necessary) all such depositions in its possession for the perusal of the Plaintiff and
that Plaintiff will then choose which if any deposition transcripts it chooses to copy and
reimburse Bushman for its ultimate selections only.” Docket entry #37 at 2. Bushman asserts
that the subpoena is onerous and burdensome and invades the rules of confidentiality that govern
court reporters. Bushman asks that the Court quash the subpoena or “provide for the Plaintiff to
give . . . notice to the original parties litigant in the various cases and for reimbursement to
Bushman for all copies produced at the customary rate–not just the ones selected by the
Plaintiff.” Id., ¶ 10.
Rivercliff responds that one or more of the defendants have identified Garner as an expert
who will testify in this case. Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires
the disclosure of an expert witness report that contains, among other things, “a list of all other
cases in which, during the previous 4 years, the witness testified as an expert at trial or by
deposition . . . . ”

The purpose of Rule is to allow the opposing party an opportunity to review

an expert’s past testimony, and failure to comply with this disclosure requirement may prevent
the expert from testifying. See Fed. R. Civ. P. 37(c)(1).
The Court finds that the subpoena at issue subjects Bushman to undue burden because it
requires the production of all transcripts recording Garner’s past deposition testimony. The
procedure contemplated under Rule 26(a)(2)(B) is the most efficient method for obtaining
information about specific cases in which Garner has testified in the past 4 years. Once Garner
has identified cases in which he has testified as an expert at trial or by deposition within the past
4 years, Rivercliff may serve Bushman with a subpoena for related transcripts. The Court finds
no merit to Bushman’s argument that Garner’s deposition testimony is confidential by virtue of

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the code of professional ethics published by the National Court Reporters Association
(“NCRA”), which calls for the preservation of confidentiality of oral or written information
entrusted to a court reporter. An expert’s deposition testimony is subject to be included in public
records, and parties have no reasonable expectation of privacy in such testimony based on the
NCRA’s code of professional ethics.
For the reasons stated, the motion to intervene by Transcriptions, Inc., d/b/a/ Bushman
Court Reporting, (docket entry #37) is GRANTED, and the intervenor’s motion to quash (docket
entry #37) is GRANTED on the ground that the subpoena at issue is unduly burdensome.
IT IS SO ORDERED THIS 27TH DAY OF SEPTEMBER, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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