Apple Inc. v. Amazon.Com, Inc.
Filing
115
ORDER RE: PLAINTIFFS JOINT DISCOVERY LETTER (Dkt. No. 113). Signed by Magistrate Judge Jacqueline Scott Corley (ahm, COURT STAFF) (Filed on 4/1/2013)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
10
Northern District of California
United States District Court
11
APPLE INC.,
Plaintiff,
12
13
Case No.: 11-1327 PJH (JSC)
ORDER RE: PLAINTIFF’S JOINT
DISCOVERY LETTER (Dkt. No. 113)
v.
14
15
16
AMAZON.COM, INC., et al.,
Defendants.
17
18
Now pending before the Court is the parties’ joint discovery letter brief concerning whether
19
Apple should be compelled to produce discovery related to the work of two assistants to Apple’s
20
testifying survey expert. (Dkt. No. 113.) Specifically, Amazon seeks to compel Apple to 1) produce
21
undisclosed survey work conducted by the assistants, Brian Dragun and Tim Hoffman, and 2) make
22
Dragun and Hoffman available for deposition. The undisclosed survey work at issue is an initial
23
survey generated by Dragun and Hoffman that Amazon believes may have “influenced and
24
informed” the subsequent survey work of Apple’s testifying expert, Dr. Carol Scott, who used
25
Dragun and Hoffman as assistants in that later work. (Id. at 1.) Apple contends that the initial
26
survey work is undiscoverable because it was created by Dragun and Hoffman in their roles as
27
Apple’s non-testifying, consulting experts, and because it “was never provided to, discussed with, or
28
1
considered by Scott.” (Id. at 6.) For the reasons stated below, the Court finds that limited
2
depositions of both Dragun and Hoffman are warranted.
3
4
DISCUSSION
Federal Rule of Civil Procedure 26(a)(2)(B)(ii) requires the production of “the facts or data
“considered” to include information that an expert reviews or generates, “regardless of whether the
7
experts actually rely on those materials as a basis for their opinions.” See, e.g., S.E.C. v. Reyes, 2007
8
WL 963422, at *1 (N.D. Cal. Mar. 30, 2007). At the same time, when experts serve as litigation
9
consultants, the work-product privilege generally applies to materials reviewed or generated by them
10
in that capacity. See Fed. R .Civ. P. 26(b)(3); United States v. Nobles, 422 U.S. 225, 238–39 (1975);
11
Northern District of California
considered by the [expert] witness in forming” his or her opinions. Courts have read the term
6
United States District Court
5
Reyes, 2007 WL 963422 at *1. In addition, Rule 26(b)(4)(D) provides that a party may not
12
“discover facts known or opinions held by an expert who has been retained or specifically employed
13
by another party in anticipation of litigation or to prepare for trial and who is not expected to be
14
called as a witness at trial” unless, in relevant part, exceptional circumstances can be shown.
15
The Court concludes that Apple should be compelled to produce additional discovery on
16
Dragun’s and Hoffman’s involvement in the development and analysis of the later survey work,
17
although it is premature to order any discovery on the undisclosed survey. Although Apple asserts
18
that Dragun’s and Hoffman’s initial survey work is protected by Rule 26(b)(4)(D), the undisputed
19
facts suggest that that work may not have been independent of Scott’s later survey work in mid-
20
2012. That is to say, Scott may have considered, if not relied on, the initial survey work in forming
21
her opinion because Dragun and Hoffman completed the initial survey work sometime before or
22
during their work on the later surveys with Scott. Further, while Scott testified at her deposition that
23
she is unaware of any initial survey work conducted by Dragun, Apple produced billing records
24
along with Scott’s expert report that include all hours worked by Scott, Dragun, and Hoffman from
25
January to September 2012. Those time sheets show that from January to September 2012, Dragun
26
and Hoffman each worked more than twice as many hours on this matter as Scott. Thus, Apple’s
27
contention that Scott and her assistants’ mid-2012 survey work is independent of the initial survey is
28
2
1
called into question by the billing records for the mid-2012 survey work which includes hours spent
2
on the initial survey.
3
Moreover, on this record it is difficult to definitively conclude that Scott was not exposed in
the two work projects and the dependent nature of Scott, Dragun, and Hoffman’s working
6
relationship. Scott testified at her deposition that that Dragun and Hoffman “will do all the initial
7
putting together [of the survey data],” and “after they’ve done the initial work, then that’s when I get
8
involved.” (Dkt. No. 113, Ex. 1 at 69:7-15.) Regarding the designing of the surveys, Scott could not
9
recall whether she designed the surveys herself or if this was done in collaboration with Dragun and
10
Hoffman, or others at her firm. (Id. at 71:21-72:4) She did testify that Hoffman does a “cleaning” of
11
Northern District of California
some manner, perhaps even unknowingly, to the initial survey work given the proximity in time of
5
United States District Court
4
the data before she sees it, and that she, Hoffman and Dragun sometimes jointly examine and discuss
12
the results of the surveys, but did not say whether that happened in this case. (Id. at 86:25-88:3).
13
While Scott’s deposition and the billing records reveal some collaboration between Scott,
14
Hoffman and Dragun, the record does not support Amazon’s full discovery request. To require
15
Apple to produce the initial survey, or have Dragun and Hoffman deposed on the contents of the
16
initial survey, might violate Rule 26(b)(4)(D). However, if Amazon deposes Dragun and Hoffman
17
solely on the issue of their specific involvement in the later survey work, Rule 26(b)(4)(D) would
18
not be implicated.
19
The cases Amazon relies upon for a broader ruling do not support its contention. In
20
Derrickson v. Circuit City Stores, Inc., 1999 WL 1456538, at *6-7 (D. Md. Mar. 19, 1999), the court
21
rejected the contention that an assistant’s work was non-discoverable work-product where the
22
assistant and testifying expert worked “hand-in-glove” in analyzing and generating data. It was
23
undisputed, however, that the work produced by the non-testifying expert was relied upon by the
24
testifying expert in forming his opinion. Id. at *6; see also Heitmann v. Concrete Pipe Mach., 98
25
F.R.D. 740, 742 (E.D. Mo. 1983) (holding that documents generated by non-testifying expert must
26
be produced because the testifying expert “relied upon the [documents] in forming his own
27
opinion”). Such reliance has not been established in this case.
28
3
1
Similarly, in Herman v. Marine Midland Bank, 207 F.R.D. 26, 31 (W.D.N.Y. 2002), the
assisting in the drafting of the expert report. The court found that the deposition was warranted
4
because the non-testifying expert co-authored the expert report and the evidence—including the
5
associate’s billing records which reflected 16.75 hours more than the number of hours billed by the
6
expert and more than half the total hours it took to generate the report—“clearly demonstrate[d]”
7
that the expert report submitted was “the result of substantial collaborative work” between he and
8
the testifying expert. Id. As in Herman, the Court has identified signs of considerable collaboration
9
between Scott and Dragun and Hoffman so as to warrant the deposition of Dragun and Hoffman on
10
their actions in assisting Scott, 1 but nothing in Herman supports compelling discovery of their initial
11
Northern District of California
court ordered the deposition of a non-testifying expert on what that expert’s activities were in
3
United States District Court
2
survey work.
12
Finally, although Amazon cites Long-Term Capital Holdings v. United States, 2003 WL
13
21269586, at *4 (D. Conn. May 6, 2003) as supporting authority, the court there declined to allow
14
discovery into the substance of the assistants’ work in developing the expert report; rather, the court
15
held that a deposition concerning only the “participation of [consulting] personnel in the preparation
16
and drafting of the expert reports and the extent of any meetings and contacts between [consultants]
17
and [the testifying expert] does not invoke the work product concerns underlying Rule
18
26(b)(4)(B).” 2
19
20
21
22
23
24
25
26
27
28
Apple argues that Herman is distinguishable because there the assistant was the co-author of
the expert report. The Court is not persuaded that Herman turned on the assistant’s status as a coauthor. Indeed, the Herman court dedicates most of its discussion to the assistant’s level of
involvement—hours worked, fees paid—in analogizing the case to the facts in Derrickson, where the
assistant was not a co-author.
2
While Amazon raises the issue of Rule 26(b)(4)(D)’s “exceptional circumstances”
exception several times, it does not explain what the exceptional circumstances are in this case.
Although not entirely clear, it appears Amazon asserts that it needs the initial survey work to crossexamine Scott. (See Dkt. No. 113 at 4 (“[T]he materials are sought for impeachment purposes,
which the protective order does not limit, and for which “exceptional circumstances” do exist,
requiring production.”). Exceptional circumstances exist where the condition observed by the expert
is no longer observable, where the costs of an independent examination would be judicially
prohibitive, or where there are no other available experts in the same field or subject area. Oki Am.,
Inc. v. Advanced Micro Devices, Inc., 2006 WL 2987022 at *2 (N.D. Cal. Sept. 27, 2006). Amazon
cites no case, and provides no reasoning, supporting its suggestion that cross-examination qualifies
as an exceptional circumstance.
1
4
1
Amazon also relies on Reyes for the proposition that since Dragun and Hoffman were both
2
consulting experts and assistants to the testifying expert, their work is protected “only over those
3
materials generated or considered uniquely in the expert’s role as consultant.” (Dkt. No. 113 at 3
4
(quoting Reyes, 2007 WL 963422 at *1).) In other words, Amazon argues that to the extent there is
5
any ambiguity as to whether materials were generated by Dragun and Hoffman solely in their
6
capacity as consulting experts, the materials are discoverable. Reyes, however, addressed the
7
particular issue of when a single expert “alternately dons and doffs the ‘privileged hat’ of a litigation
8
consultant and the ‘non-privileged hat’ of the testifying witness,” holding that the work-product
9
privilege applies “only as to materials that do not pertain to the subject matter on which [the] experts
Northern District of California
have submitted testimony.” 2007 WL 963422 at *1-2. Dragun and Hoffman, however, are the
11
United States District Court
10
testifying expert’s assistants; they are not themselves the testifying expert as in Reyes. Amazon cites
12
no case that has extended Reyes to such a situation, nor does it offer an explanation as to why such
13
an extension should be made. Indeed, Reyes’ holding that materials are protected only to the extent
14
they were generated or considered uniquely in the expert’s role as consultant appears to be of little
15
help here where an inquiry into what the assistants considered is not part of the analysis.
16
At the same time, the Court is not persuaded by Apple’s argument that Scott’s testimony
17
regarding her ignorance of the initial survey is sufficient to find that the initial survey had no bearing
18
on Scott’s opinion. Her opinion is influenced by, among other things, the development of the
19
surveys, the collection of the data from those surveys, and the analysis of that data—all tasks that
20
Dragun and Hoffman either did assist or may have assisted Scott with. Scott could not recall the
21
extent of Dragun’s and Hoffman’s involvement in the later surveys. Apple’s reliance on U.S. ex rel.
22
Westrick, 2012 WL 6599866 (D.D.C. Dec. 18, 2012) is inapposite. The Westrick court refused to
23
compel production of a consulting expert’s work where there was “nothing more than speculation”
24
that the consulting expert worked with the testifying expert in any capacity in developing the expert
25
report. 2012 WL 6599866 at *4. Here, the Court is not compelling production of the consulting
26
experts’ work and, in any event, it is undisputed that the consulting experts collaborated with the
27
testifying expert on her work leading to her expert report.
28
5
1
At the hearing, Apple argued that Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609
opinions outside his own expertise—limits discovery into an assistant’s work. In Dura Auto., the
4
court stated that while persons providing assistance in formulating expert opinion normally need not
5
testify, “[t]he opposing party can depose them in order to make sure they performed their tasks
6
competently.” 285 F.3d at 612-13. The court, however, was not asked whether it is appropriate to
7
depose an assistant under these circumstances. The question facing the Dura Auto court—whether
8
the district court properly excluded expert testimony under the Daubert standards—is significantly
9
different from the question posed to this Court: whether a testifying expert’s assistants, who also
10
perform their own consulting expert work on the same subject matter as their assistance, may be
11
Northern District of California
(7th Cir. 2002)—a case about whether an expert’s opinion should be excluded if that expert relies on
3
United States District Court
2
deposed to test the nature and confines of the assistance they provided to the testifying expert. The
12
Dura Auto holding accordingly does not apply.
13
Finally, the parties’ joint letter briefly discusses the stipulated protective order (“SPO”)
14
entered in this case and its effect on the parties’ present dispute. The SPO provides in relevant part
15
that “[d]iscovery of materials provided to testifying experts shall be limited to those materials . . .
16
actually relied upon by the testifying expert.” (Dkt. No. 113 at 4; Dkt. No. 61 § 20(b).) The SPO
17
thus sets a higher standard than the Federal Rules for discovery of certain materials, requiring the
18
expert to actually rely on the materials. See Reyes, 2007 WL 963422, at *1 (noting that Rule
19
26(a)(2)(B)(ii) requires the production of “the facts or data considered by the [expert] witness in
20
forming” his or her opinions and that the term “considered” has been interpreted to include
21
information that an expert reviews or generates, “regardless of whether the experts actually rely on
22
those materials as a basis for their opinions.”). However, the SPO appears inapplicable to the
23
parties’ dispute. As Amazon points out, the SPO governs discovery of materials provided to a
24
testifying expert, not materials generated by a testifying expert’s assistants. Amazon further argues
25
that it seeks the discovery for impeachment purposes, which the SPO does not limit. Apple does not
26
respond to these arguments, and instead concludes that “Amazon cannot meet the heightened
27
standard required by the SPO because the consulting expert work was not relied on (nor provided to)
28
6
1
Dr. Scott.” (Dkt. No. 113 at 8.) Based on the record in front of it, the Court concludes that the SPO
2
is not applicable to the current dispute.
CONCLUSION
3
4
For the reasons stated, the Court finds that Apple must produce Dragun and Hoffman for
activities and level of involvement with Dr. Scott’s report, including their activities related to the
7
four surveys designed, conducted, and analyzed by Scott in mid-2012. The inquiry into the
8
assistants’ activities may include questions regarding what materials were used in designing,
9
conducting, and analyzing the mid-2012 surveys. Amazon may also inquire as to whether Dragun
10
and Hoffman actually performed any consulting work for Apple apart from their assistance to Dr.
11
Northern District of California
limited deposition. Specifically, Dragun and Hoffman must be prepared to testify as to their
6
United States District Court
5
Scott; however, such questions cannot probe the substance of the assistants’ initial survey work. If,
12
following the deposition, Amazon believes the testimony reveals that Dragun’s and Hoffman’s
13
consulting work is discoverable, it may return to court to seek additional discovery, provided no
14
agreement can be reached.
15
16
IT IS SO ORDERED.
17
18
Dated: April 1, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?