Arkansas River Power Authority v. Babcock &Wilcox Power Generation Group, Inc.

Filing 134

ORDER denying 108 Motion for Protective Order. ARPA will arrange for Mr. Gendreau to be deposed on the limited issues identified in this Order no later than 10/23/15. Discovery remains closed for all other purposes. By Magistrate Judge Nina Y. Wang on 10/1/15. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00638-CMA-NYW
ARKANSAS RIVER POWER AUTHORITY,
Plaintiff,
v.
THE BABCOCK & WILCOX COMPANY, f/k/a BABCOCK & WILCOX POWER
GENERATION GROUP, INC.,
Defendant.

ORDER ON THIRD PARTY SYNCORA’S MOTION FOR PROTECTIVE ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Non-Party Syncora Guarantee Inc.’s
(“Syncora”) Motion for Protective Order (“Syncora Motion for Protective Order”) [#108]1
filed on July 21, 2015. This motion was referred to the undersigned Magistrate Judge
pursuant to the Order of Reference dated May 13, 2014 [#19], the Reassignment dated
February 9, 2015 [#63], and the Memorandum dated July 22, 2015 [#109]. Plaintiff
Arkansas River Power Authority (“ARPA”)2 filed a Brief in Support of the Syncora Motion
for Protective Order (“ARPA Brief”) [#110] and Defendant The Babcock & Wilcox

1

For consistency and ease of reference, the court cites to documents as filed on, and
pages assigned by, the Court Electronic Filing System (“ECF”), unless otherwise noted.
In this Order, the court also uses the convention of “ECF No.” to refer to the filings in
other related cases.
2

ARPA is a political subdivision “formed in 1979 by the Colorado municipalities of Las
Junta, Lamar, Las Animas, Trinidad and Walsenburg and the New Mexico city of Raton
for the purpose of operating a wholesale electric utility to supply the electricity
requirements of those communities.” [#80 at ¶ 7].

Company (“B&W”) filed a Response to the Syncora Motion for Protective Order and the
ARPA Brief [#111]. This court held oral argument on September 9, 2015, and took the
matter under advisement. Having now reviewed briefing, considered the applicable
case law, and being fully advised of the premises, the court hereby DENIES the
Syncora Motion for Protective Order.
BACKGROUND AND PROCEDURAL HISTORY
In April 2005, ARPA entered into a contract with B&W for a coal-fired steam
boiler to use in converting a natural-gas electric generation facility into one firing coal,
known as the Lamar Repowering Project (the “LRP”) in Lamar, Colorado. [#80 at ¶ 41].
The contract contemplated that ARPA would pay B&W over $20 million for the boiler.
[Id. at ¶ 42]. ARPA contends that the boiler never met performance standards, and as a
result, ARPA spent millions of dollars on modifications of the boiler that never worked.
[Id. at ¶ 1].

ARPA further avers the failure of the B&W boiler to meet emissions

standards resulted in fines and penalties paid to state and federal regulators and
defense and settlement costs of litigation brought by environmental groups.

[Id.]

Ultimately, ARPA has been unable to operate the LRP as intended, and seeks to
recover not only the cost of the boiler, but also the fines paid to government regulators,
costs and fees associated with the litigation settlements,3 and damages flowing from the
inability to operate the LRP. [#80 at ¶ 95, 36-37].
Syncora is a financial guarantee insurer that insures, among other things, the

3

In its order dated June 30, 2015, the court gave ARPA the option to protect its
attorney-client communications regarding settlements in third party litigation if ARPA
withdrew its prayer for relief associated with such settlements. [#101 at 16]. Nothing on
the court docket suggests that such prayer for relief has been withdrawn, and therefore,
this court includes it.
2

prompt payment of bonds issued by municipalities and other local governmental
entities. [#108 at 2]. In 2006 and 2007, Syncora insured over $110 million of bonds
issued by ARPA to pay for the LRP. [Id.] In 2011, Trinidad sued ARPA, seeking among
other things, to terminate its membership in ARPA and a declaratory judgment voiding
its obligation to purchase power from ARPA under a Power Supply Agreement,
purportedly based on the failure of the LRP. See City of Trinidad, Colorado v. Arkansas
River Power Authority, Case No. 2011cv30 (Las Animas County, Colorado); [#108 at 2].
On May 21, 2013, Syncora filed a two-count complaint against Trinidad in this court
(“Trinidad matter”), asserting breach of the Implied Covenant of Good Faith and Fair
Dealing associated with the Power Supply Agreement between ARPA and Trinidad and
Anticipatory Breach of Contract. Syncora Guarantee Inc. v. City of Trinidad, Colorado,
Civil Action No. 13-cv-1332-REB-KMT (D. Colo. 2013), ECF. No. 1.
During the course of the Trinidad matter, Syncora retained Richard Gendreau, an
engineer with expertise in coal-fired boilers, as a consulting expert. [#108 at 3]. On
January 14, 2014, Mr. Gendreau attended a mediation meeting involving Syncora,
Trinidad, ARPA, and B&W. [Id.] While Syncora, Trinidad, and ARPA settled the matter,
no resolution with B&W was reached and ARPA commenced this action in February
2014. [#1]. ARPA subsequently retained and disclosed Mr. Gendreau as a testifying
expert in this matter.
This latest dispute arises from the discoverability of Mr. Gendreau’s opinions
regarding whether further modifications to the boiler design proposed by B&W in 2012
(“2012 modifications”) would have brought the B&W boiler into compliance with the
environmental emissions requirements. [#108 at 3-4]. During his June 3 deposition,

3

counsel for B&W asked Mr. Gendreau whether he had formed opinions on the 2012
modifications. [#100 at 5; #100-4 at 97:13-98:2]. Mr. Gendreau’s testimony suggests
that he considered that question (or related issues) as part of his previous engagement
with Syncora in the Trinidad matter, but was not willing to disclose information without a
court order. [#100-4 at 98:6-100:2]. Counsel for B&W made clear on the record that
“the questions [B&W] wanted answered is whether Mr. Gendreau has reached an
opinion of whether the 2012 modifications, if implemented, would allow the boiler to
meet its contractual guarantees. Further, [B&W] would like to know what that opinion is
and what it is based on.”

[#110-4 at 99:17-22].

The instant Syncora Motion for

Protective Order followed.
Syncora contends that Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure
prohibits B&W from asking Mr. Gendreau about opinions he developed for Syncora as a
non-testifying expert in the Trinidad matter, because such opinions constitute Syncora
work product. [#108 at 4-8]. ARPA supports Syncora’s position, further arguing that
ARPA did not ask Mr. Gendreau to opine, and Mr. Gendreau did not opine, about
whether the 2012 modifications proposed by B&W would have brought the boiler into
compliance.4 [#110 at 3-4]. Due to Mr. Gendreau’s role as a testifying expert in this
matter, the court will first consider whether Mr. Gendreau is required to affirmatively
disclose his opinions regarding the 2012 modifications, and then turn to whether such
information is discoverable, even absent an affirmative duty to disclose.

4

While ARPA originally contemplated that B&W would argue that information from Mr.
Gendreau was discoverable because he was a “fact witness,” [#110 at 2], B&W has
made no such argument in its Response [#111] and the court does not address it in this
Order.
4

ANALYSIS
I.

Applicable Law
A.

Rule 26(a)(2)(B)

Mr. Gendreau is a testifying expert in this action, and therefore, in his expert
report, Mr. Gendreau must disclose, inter alia, (1) a complete statement of all opinions
he will express and the basis and reason for them; (2) the facts or data considered by
the witness in forming them; and (3) any exhibits that will be used to summarize or
support his expert opinions. Fed. R. Civ. P. 26(a)(2)(B).5
B.

Rule 26(b)(4)(D)

In the Trinidad matter, Mr. Gendreau acted as a consulting expert for Syncora,
that is, as an expert retained “in anticipation of litigation or to prepare for trial and who is
not expected to be called as a witness at trial.” Rule 26(b)(4)(D) provides that:
Ordinarily, a party may not, by interrogatories or deposition, discover facts
known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial.
Fed. R. Civ. P. 26(b)(4)(D). Two exceptions are identified within the Rule itself: (1) as
provided for in Rule 35(b), which requires the report of an examiner who is performing a
mental or physical exam as required by litigation; and (2) on showing exceptional

5

  Rule 26(b)(4)(C) governs the communications between Mr. Gendreau and ARPA’s
counsel. Generally, under the Rule, communications between Mr. Gendreau and
ARPA’s counsel are not discoverable except: as they relate to the compensation of Mr.
Gendreau for his expert study in this action or testimony; to identify facts or data that the
party’s attorney provided and that the expert considered in forming the opinions to be
expressed; or to identify assumptions that the party’s attorney provided and that the
expert relief on in forming the opinions to be expressed. Fed. R. Civ. P. 26(a)(4)(C)
(emphasis added). B&W does not allege, nor could it, that Mr. Gendreau’s opinions
from the Trinidad matter fall within the exceptions to Rule 26(b)(4)(C) to warrant
disclosure in this action. 

5

circumstances under which it is impracticable for the party to obtain facts or opinions on
the same subject by other means. Id.
The burden of establishing whether the Rule applies lies with Syncora. See
Johnson v. Gmeinder, 191 F.R.D 638, 643 (D. Kan. 2000) (party invoking the protection
of Rule 26(b)(4)(B)6 has the burden of establishing that the Rule applies).

If Mr.

Gendreau’s prior opinion is protected under the Rule, then the burden shifts to B&W to
show exceptional circumstances warranting disclosure. Martensen v. Koch, 301 F.R.D.
562, 580 (D. Colo. 2014). A party seeking discovery from a non-testifying expert cannot
rely on conclusory statements or leave it to the court to ascertain its substantial need.
Id. 
Neither exception fully addresses the precise issue presented by this instant
matter, i.e., whether an opinion held or rendered by a consulting expert in one matter is
discoverable when that same individual becomes a testifying expert in a subsequent,
separate matter involving different parties.
II.

Is Mr. Gendreau Required to Affirmatively Disclose His Prior Opinions?
As ARPA’s testifying expert, Mr. Gendreau is required to affirmatively disclose (1)

a complete statement of all opinions he will express and the basis and reason for them;
(2) the facts or data considered by the witness in forming them; and (3) any exhibits that
will be used to summarize or support his expert opinions. Fed. R. Civ. P. 26(a)(2)(B).
B&W concedes that ARPA did not ask Mr. Gendreau to specifically opine about the

6

Prior to the 2010 Amendments to the Federal Rules of Civil Procedure, Rule
26(b)(4)(D) was previously codified at Rule 26(b)(4)(B). The substance of the Rule did
not change with the 2010 Amendments, and therefore, the court incorporates case law,
and treatises, interpreting Rule 26(b)(4)(B) into this Order. See e.g., 8A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE CIVIL § 3032 (3d ed. 2015).
6

efficacy of the proposed 2012 modifications to the boiler. [#111 at 3]. Nevertheless,
B&W argues that Mr. Gendreau should be required to disclose affirmatively his prior
opinion because his current testimony “involves the 2012 modifications in several
ways.” [Id.]. B&W argues that Mr. Gendreau put his opinion about the 2012
modifications at issue by opining in this case that: (1) it was unclear whether the 2012
modifications would bring the boiler into the required compliance [id.; #111-1 at 10-11];
(2) B&W was not diligent in exercising its best efforts to propose a solution that could
remedy the boiler’s failure to meet emissions standards; [#111 at 3; #111-1 at 10-11];
and (3) there are significant differences between the original boiler design and the
proposed modifications. [#111 at 3; #111-1 at 12]. ARPA contends that because it
does not ask for, and Mr. Gendreau does not render, an opinion regarding whether the
proposed 2012 modifications will function to bring the boiler up to the required emission
standards, any testimony about his prior work for Syncora is not discoverable. [#110 at
6-7].

ARPA further contends that Mr. Gendreau did not consider such opinion in

rendering his opinions in this matter. [Id. at 4].
A review of excerpts of Mr. Gendreau’s report provided by B&W [#111-1] reveals
that ARPA and Mr. Gendreau studiously avoided the topic of his opinion regarding the
proposed 2012 modifications. In response to Topic No. 4, Mr. Gendreau opines as to
the timeliness and diligence exercised by B&W in addressing the boiler’s failure to meet
emissions guarantees, but does not address whether the 2012 modifications, once
proposed, would have brought the boiler into compliance. [Id. at 10-11]. In doing so, he
does not opine as to the efficacy of the proposed 2012 modifications; in fact, his
opinions are ambivalent as to whether B&W’s proposed 2012 modifications would

7

ultimately be successful.7 Instead, his opinion with respect to Topic No. 4 is premised
on B&W’s lack of diligence, i.e., by the time “ARPA began operating in the first half of
2011, there should have been sufficient data for B&W to determine what else might be
necessary to absolutely correct the problem,” but “B&W took a step-by-step approach to
correcting the problems, rather than taking all steps that could have been taken to
address the problems at the outset. [Id.]. Mr. Gendreau’s opinion is that B&W’s failing
was one of timing, rather than of efficacy.
In response to Topic No. 5, Mr. Gendreau opines about whether there are
fundamental differences between the boiler as originally designed, with the
modifications made and proposed by B&W. [Id. at 12]. In doing so, Mr. Gendreau
again fastidiously avoids taking any position with respect to the efficacy of the 2012
modifications, accepting that “even if the proposed modifications were successful in
achieving the flue gas emissions guarantees,” the modified boiler would be “dramatically
different” than the originally proposed design. [Id. at 12]. None of the examples of the
differences in design relate to flue gas emissions, but rather, focus on other features,
such as power consumption, cost of maintenance, and reliability. [Id.]
Nor does this court agree with B&W’s argument that Mr. Gendreau somehow
incorporated his prior opinions into his current opinion by attaching a set of notes to his
report that he took during a meeting with B&W.

[#111 at 4].

The notes reflect

information provided by B&W to meeting participants, including Mr. Gendreau, but do

7

In fact, the very statement attributable to Mr. Gendreau that B&W takes issue with, i.e.,
“it [is] not certain that these modifications would have brought the Project into
compliance with it[s] operating permit,” [#111 at 1], underscores the fact that Mr.
Gendreau takes no position as to whether the proposed 2012 modification would
actually work.
8

not reflect any opinions that Mr. Gendreau formed about the proposed modifications.
[#111-1 at 14-15]. The presentation given by B&W barely contains any information
about the LRP modifications at all, but instead provides overview information about the
timeline of the project, the individuals involved, and a high-level outline of discussion
points. [#111-1 at 17-21]. While Mr. Gendreau may have considered the same facts
and data provided by B&W in reaching his opinions in both matters, there is no
indication either in his report [#111-1] or in his deposition testimony [#111-2] that
indicates that Mr. Gendreau specifically incorporated his prior opinions from the Trinidad
matter into his expert opinions in this instant case. In addition, by attaching his notes
and the B&W presentation, Mr. Gendreau has disclosed the facts and data gained from
his consulting role that he considered as testifying expert in this matter.
Accordingly, the court concludes that Rule 26(a)(2)(B) did not require Mr.
Gendreau to affirmatively disclose his opinions regarding the 2012 modifications formed
during his previous work with Syncora on the Trinidad matter.
III.

May B&W Otherwise Discover Mr. Gendreau’s Prior Opinions?
The court now turns to the separate question of whether B&W can otherwise

discover Mr. Gendreau’s prior opinions from the Trinidad matter, even if Mr. Gendreau
was not required to affirmatively disclose them as part of his expert report. Syncora
argues that Mr. Gendreau’s prior opinions regarding the 2012 modifications are “core
work product protected from disclosure,” that cannot be waived by either Mr. Gendreau
or ARPA. [#108 at 4-8]. B&W argues that Rule 26(b)(4)(D) does not apply because Mr.

9

Gendreau was not a consulting expert for ARPA in this case, but rather was a
consulting expert for non-party Syncora in a separate matter.8 [#111 at 7-8].
The plain language of Rule 26(b)(4)(D) only refers to parties:
Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is not expected to
be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable
for the party to obtain facts or opinions on the same subject by other
means.
Fed. R. Civ. P. 26(b)(4)(D). It is undisputed that Syncora is a non-party to this litigation
and that Mr. Gendreau has not been retained by any party to this litigation as a nontestifying expert.9 Both Syncora and ARPA make clear that ARPA did not retain Mr.
Gendreau until September 2014 and “had never engaged Mr. Gendreau to perform any
services or render any opinions for ARPA prior to September 2014” – after he ceased
being a consulting expert for Syncora in the Trinidad matter. [#108 at 3; #110 at 4].

8

B&W’s arguments that Mr. Gendreau has waived any protection from his prior opinions
by the substance of his opinion in this matter [#111 at 6-8] are addressed above, and
are not considered again in this section.

9

  As Syncora points out, courts in this District have recognized that the protections of
Rule 26(b)(4)(D) can be applicable even when the protected material was developed
before the litigation is commenced. See Leprino Foods Co. v. DCI, Inc., Civil Action No.
13-cv-02430-RM-KMT, 2014 WL 2922667, *5 (D. Colo. June 27, 2014). In this case,
however, there is no dispute that at the time of the Trinidad matter ARPA, Syncora, and
B&W reasonably anticipated litigation involving all of them might ensue over the boiler;
indeed, that can be the only reason that all of these entities engaged in the mediation
session on January 14, 2014. [#108 at 3]. Therefore, Leprino does not address the
issue central to this case, i.e., can Syncora as a non-party invoke the protections of
Rule 26(b)(4)(D) to prevent disclosure of Mr. Gendreau’s opinions with respect to the
2012 modifications.  

10

The relevant inquiry, therefore, is whether Syncora retains any residual protection in Mr.
Gendreau’s opinions that prohibits their disclosure in this matter, or whether any such
protection is extinguished by virtue of Syncora’s non-party status.
Both Parties cite the case of Rocky Mountain Natural Gas Co. v. Cooper Indus.,
Inc., 166 F.R.D. 481 (D. Colo. 1996), which I find to be instructive, but not dispositive in
this case. Syncora argues that Judge Nottingham recognized that a dismissed third
party has standing to challenge and quash attempts to discover the opinions of its
consulting experts. [#108 at 8]. But a closer reading of the case indicates that Judge
Nottingham was contemplating that the dismissed defendant, Parker-Hannefin, would
“be entitled to have the noticed depositions quashed and a protective order entered,” if it
was still in the case, not as a non-party. Rocky Mountain Natural Gas Co., 166 F.R.D.
at 483 (“Thus, if Parker–Hannifin were seeking to prevent defendant from deposing the
experts regarding information and opinions they acquired while in Parker–Hannifin's
employ, it would be entitled to have the noticed depositions quashed and a protective
order entered. [citations omitted]. Parker–Hannifin, however, is no longer a party to this
case.”) (emphasis added). The court goes on to hold that “because Parker-Hannefin is
no longer a party to the action, allowing defendant to depose the consultative experts
does not implicate the policy concerns behind rule 26(b)(4)(B).” Id. The case does not
address factors to consider or what outcome there would be if Parker-Hannefin, rather
than Rocky Mountain Natural Gas, had brought a non-party motion to quash.
Some courts that have considered whether Rule 26(b)(4)(D) should be applied to
a testifying expert’s prior consulting work for a non-party agree with B&W’s
interpretation of Rule 26(b)(4)(D) – that the Rule only applies if the opinions were

11

developed for this particular action, and for a party involved in the case. See Nidec
Corp. v. Victor Co. of Japan, Case No. C-05-0696 (EMC), 2007 WL 2349323, *1 (N.D.
Cal. Aug. 14, 2007);10 Bio-Technology General Corp. v. Novo Nordisk A/S, Case No.
02-235-SLR, 2003 WL 21057238, *1-*2 (D. Del. May 7, 2003); Sullivan v. Sturm, Ruger
& Co., 80 F.R.D. 489, 491 (D. Mont. 1978).11
Some courts have not limited Rule 26(b)(4)(D)’s reach to the same litigation. See
Religious Technology Ctr. v. F.A.C.T.Net, Inc., 945 F. Supp. 1470, 1480 (D. Colo.
1996); Feist v. RCN Corp., Misc. Case Nos. 12-mc-80135 SI, 12-mc-80119, 12-mc80121, 12-mc-80140, 2012 WL 541362, *3 (N.D. Cal. Nov. 6, 2012) (holding that Rule
26(b)(4)(D) does not limit the protection to facts known or opinions held regarding the
litigation or trial at issue); Employer’s Reinsurance Corp. v. Clarendon Nat’l Ins. Co.,
213 F.R.D. 422 (D. Kan. 2003); Hermsdorfer v. American Motor Corp., 96 F.R.D. 13,
14-15 (W.D.N.Y. 1982).
The holding of these cases is consistent with the Tenth Circuit’s interpretation of
the purpose of the Rule, i.e., “[t]he rule is designed to promote fairness by precluding
unreasonable access to an opposing party’s trial preparation.” Durflinger v. Artiles, 727
F.2d 888, 891 (10th Cir. 1984) (emphasis added). And the weight of authority appears

10

After inviting the non-party to address any concerns regarding confidentiality, the
court nonetheless ordered production of the consulting expert’s documents and
deposition on the subject matter of his work in the prior litigation. See [ECF No. 774],
Case No. 05-cv-00686-SBA (N.D. Cal. Aug. 28, 2007).

11

  Similarly, courts within and outside this Circuit have concluded that work product
prepared for a non-party under Rule 26(b)(3) does not extend to a subsequent action
not involving the non-party. Hawkins v. South Plains Int’l Trucks, Inc., 139 F.R.D. 682,
684 (D. Colo. 1991); Tambourine Comercio Internacional SA v. Solowsky, 312 Fed.
App’x 263, 286 (11th Cir. 2009); Bozeman v. Chartis Cas. Co., Case No. 2:10-cv-102FtM-36SPC, 2010 WL 4386826, * 2 (M.D. Fla. Oct. 29, 2010); Burton v. R.J. Reynolds
Tobacco Co., 200 F.R.D. 661, 676 (D. Kan. 2001).
12

to require, at a minimum, that the party who secured consulting expert’s opinions
remain a part of the instant litigation for the protections of Rule 26(b)(4)(D) to apply.
See Baldus v. Brennan, Nos. 11-cv-562, 11-cv-1011, 2011 WL 6122542, *2 (E.D. Wisc.
2011).12 Syncora has not cited, and the court has not found, any case in which a nonparty has been permitted to invoke Rule 26(b)(4)(D) in a case where it was not a party.
Therefore, I conclude that Rule 26(b)(4)(D) does not bar discovery of Mr. Gendreau’s
opinion regarding the 2012 modifications.
Rule 26(b)(1) governs the general scope of discovery, and provides that a party
may obtain discovery regarding any non-privileged matter that is relevant to any party’s
claim or defense. Fed. R. Civ. P. 26(b)(1). Neither Syncora nor ARPA argues that Mr.
Gendreau’s opinion of the 2012 modification is irrelevant to the claims or defenses
raised in this case. And Syncora has also not identified any other basis to preclude
discovery from Mr. Gendreau of his opinion regarding the 2012 modifications, such as
prejudice, embarrassment, or concern over Syncora trade secrets. Syncora and ARPA
do not assert that any common interest between them shields discovery, and ARPA
makes no argument that revealing Mr. Gendreau’s opinions regarding the 2012
modifications would somehow implicate ARPA’s work product in this litigation. Indeed,
both entities have made it very clear that their actions with respect to Mr. Gendreau and

12

Syncora cites Northern Natural Gas Co. v. Approximately 9117.53 Access in Pratt,
Kingman, and Reno Counties, Kansas, 2012 WL 1108547 (D. Kan. Mar. 31, 2012) to
support its position. [#108 at 8]. The court in Northern Natural Gas, however, did not
provide any express analysis of the application of Rule 26(b)(4)(D), and therefore, I
cannot determine whether the reasoning would be apposite to the facts of this case.
13

the Trinidad matter were distinct. Finding no grounds to prohibit discovery of Mr.
Gendreau’s opinions regarding the 2012 modifications,13 IT IS ORDERED:
(1)

Non-Party Syncora Guarantee Inc.’s Motion for Protective Order [#108] is

DENIED;
(2)

ARPA will arrange for Mr. Gendreau to be deposed on the limited issues

identified by B&W’s counsel on the record, namely, “whether Mr. Gendreau has reached
an opinion of whether the 2012 modifications, if implemented, would allow the boiler to
meet its contractual guarantees; what that opinion is; and what it’s based upon” no later
than October 23, 2015;
(3)

Each party will bear its own costs and fees for the continued deposition;

(4)

Discovery remains closed for all other purposes; and

(5)

The Final Pretrial Conference remains set for November 2, 2015 at 2:00

p.m.

DATED: October 1, 2015

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

13

In so ruling, the court does not pass on the issue of whether any information related
to Mr. Gendreau’s opinion about the efficacy of the 2012 modification is admissible at
trial.
14