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)

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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

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