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

Filing 180

ORDER granting in part and denying in part 122 Motion to Strike; denying 128 Motion to Compel; denying 151 Motion for Leave to Restrict; denying 160 Motion for Leave to Restrict; denying 168 Motion for Order; denying 169 Motion for Order. The Clerk of the Court is DIRECTED to UNRESTRICT [#128-1] and [#146]. Counsel for ARPA will PRODUCE a copy of Mr. Gendreau's December 2013 Draft Report to B&W no later than January 22, 2016. By Magistrate Judge Nina Y. Wang on 1/15/16. (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 PRETRIAL MOTIONS
Magistrate Judge Nina Y. Wang
This matter is before the court on six pretrial motions:
(1)

Plaintiff’s Motion to Strike Defendant’s Disclosure of Non-Retained

Experts (“Plaintiff’s Motion to Strike Non-Retained Experts”) [#122, filed September 4,
2015];
(2)

Plaintiff’s Motion to Compel Production of Design Standards (“Plaintiff’s

Motion to Compel”) [#128, filed September 17, 2015];
(3)

Defendant’s Motion to Restrict Access to a Portion of Exhibit 1 in Support

of ARPA’s Motion to Compel Production of Design Standards [#151, filed October 21,
2015];
(4)

Defendant’s Motion to Restrict Access to a Portion of Defendant’s

Response to ARPA’s Motion to Compel Production of Design Standards [#160, filed
October 29, 2015] (collectively, “Defendant’s Motions to Restrict”);

(5)

Non-Party Syncora Guarantee Inc.’s Brief Pursuant to the Court’s

November 15, 2015 Courtroom Minutes/Minute Order (“Syncora’s Second Motion for
Protective Order”) [#168, filed December 2, 2015]; and
(6)

Arkansas River Power Authority’s Brief Pursuant to the Court’s November

25, 2015 Courtroom Minutes/Minute Order (“ARPA’s Motion for Protective Order”)
[#169, filed December 2, 2015].
These motions were referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(A), the Order of Reference dated May 13, 2014 [#19], the
Reassignment dated February 9, 2015 [#63], and the memoranda dated September 8,
2015 [#123], September 21, 2015 [#131], October 27, 2015 [#159], October 29, 2015
[#162], and January 5, 2016 [#179]. This court held oral argument on November 2,
2015 on Plaintiff’s Motion to Strike Non-Retained Experts and Plaintiff’s Motion to
Compel, and took those motions under advisement at that time. In addition, the court
entertained argument with respect to Syncora’s Second Motion for Protective Order and
ARPA’s Motion for Protective Order during an informal discovery conference held on
November 25, 2015. Furthermore, a number of these motions raise issues that have
been previously considered by the court. Having now reviewed completed briefing,
considered the applicable case law, and being fully advised of the premises, the court
hereby GRANTS IN PART and DENIES IN PART Plaintiff’s Motion to Strike NonRetained Experts [#122]; DENIES Plaintiff’s Motion to Compel [#128]; DENIES
Defendant’s Motions to Restrict [#151 and #160]; DENIES Syncora’s Second Motion for
Protective Order [#168]; and DENIES ARPA’s Motion for Protective Order [#169].

2

BACKGROUND AND PROCEDURAL HISTORY
The factual background of this action has been recounted in prior court orders,
and therefore, will not be repeated in detail here. See, e.g., [#134]. This action arises
from an unsuccessful relationship between Plaintiff Arkansas River Power Authority
(“Plaintiff” or “ARPA”) and Defendant The Babcock & Wilcox Company (“Defendant” or
“B&W”) on a project known as the Lamar Repowering Project (“LRP”), which intended to
convert a natural-gas electric generation facility into a coal-firing one. [#80 at ¶ 41].
Plaintiff contends that the boiler provided by B&W failed to work in a manner that
allowed it to meet emission standards and consequently, the LRP became nonoperational. B&W has vigorously disputed that it is liable for the boiler’s failure or that it
is solely responsible for damages arising from the LRP’s non-operational status. The
Parties have sought court intervention for a number of discovery disputes, and this
latest set of motions involve technical information and experts who are expected to
address such technical issues of both liability and damages at trial.
The Scheduling Order in this case, which has been amended several times to
provide for extensions to deadlines, provided that information as required by Rule
26(a)(2) would be provided concurrently with the disclosure of the experts. [#31 at 15].
During the course of discovery, B&W identified the following individuals as “nonretained” experts: Mikhail Maryamchik; John Bullock; Vijay Parekh; Tom Garabedian;
Perry Brescilli; and Roger Kleisley, none of whom proffered an expert report pursuant to
Rule 26(a)(2)(B).1 ARPA continues to seek, as it has done in the past, disclosure of

1

B&W also originally identified Ron Shabaya, but withdrew its designation of him as a
non-retained expert during the course of the briefing and argument associated with
Plaintiff’s Motion to Strike Non-Retained Experts. See [#177 at 35].
3

additional design documents [#35].
ANALYSIS
I.

Applicable Law
A.

Disclosures for Non-Retained Experts

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must
disclose to all other parties the identity of any person who may be used at trial to
present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence, and
governs whether an individual anticipated to give expert testimony is required to
propound a written expert report or may provide an alternative disclosure. Fed. R. Civ.
P. 26(a)(2)(A)-(C). A retained or specially employed expert must provide a report that
contains:
(1) a complete statement of all opinions the witness will express and the
basis and reasons for them; (2) the facts or data considered by the
witness in forming them (3) any exhibits that will be used to summarize or
support them; (4) the witness’s qualifications, including a list of all
publications authored in the previous 10 years; and (5) a statement of the
compensation to be paid for the study and testimony in the case.” Fed. R.
Civ. P. 26(a)(2)(B). Pursuant to Fed. R. Civ. P. 26(a)(2)(C), expert
witnesses not required to provide a written report by Fed. R. Civ. P.
26(a)(2)(a) must, absent contrary stipulation or court order, provide a
disclosure stating the “subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or 705” and “a
summary of the facts and opinions to which the witness is expected to
testify.

Fed. R. Civ. P. 26(a)(2)(C)(i-ii).
This court has traditionally employed a burden-shifting procedure for determining
whether the requirements of Rule 26(a)(2) have been met. See Carbaugh v. Home
Depot U.S.A., Inc., Civil Action No. 13-cv-02848-REB-MEH, 2014 WL 3543714, *2 (July
16, 2014). The party seeking to strike the witness bears the initial burden of showing
that the disclosing party failed to comply with Rule 26(a)(2)(B). Id. Then the burden
4

shifts to the disclosing party to demonstrate that the witness was not required to provide
a report as contemplated by Rule 26(a)(2)(B). Id. The substance of the testimony,
rather than the status of the expert, will dictate whether a report under Rule 26(a)(2)(B)
is required. Id. at *3.
A violation of Rule 26(a)(2) is addressed by the court pursuant to Rule 37(c) of
the Federal Rules of Civil Procedure.

Rule 37(c)(1) of the Federal Rules of Civil

Procedure provides:
If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney’s fees,
caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders listed
in Rule 37(b)(2)(A)(i)-(iv).
Fed. R. Civ. P. 37(c)(1). The determination as to whether a Rule 26(a) violation is
justified or harmless is entrusted to the broad discretion of the court. Woodworker’s
Supply, Inc. v. Principal Mt. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).

In

exercising its discretion, the court’s consideration is guided by the following four factors:
(1) the prejudice or surprise to the impacted party; (2) the ability to cure the prejudice;
(3) the potential for trial disruption; and (4) the erring party’s bad faith or willfulness. Id.
B.

Motions to Restrict

With respect to discovery materials filed in proceedings before this court, the
Supreme Court acknowledged a common-law right of access to judicial records in Nixon
v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon
5

the recognition that public monitoring of the courts fosters important values such as
respect for the legal system. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir.
2002). Judges have a responsibility to avoid secrecy in court proceedings because
“secret court proceedings are anathema to a free society.”

M.M. v. Zavaras, 939 F.

Supp. 799, 801 (D. Colo. 1996). There is a presumption that documents essential to
the judicial process are to be available to the public, but access to them may be
restricted when the public's right of access is outweighed by interests which favor
nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997).
Accordingly, documents filed with this District are presumptively available to the
public, and the burden is on the party seeking restriction to justify such relief.
D.C.COLO.LCivR 7.2(a). A showing of compelling reasons for restriction of public
access is necessary, as it is critical that the public be able to review the factual basis of
this court's decisions and evaluate the court’s rationale so that it may be confident that
the court is functioning as a neutral arbiter. Cf. McVeigh, 119 F.3d at 814.
Local Rule 7.2(c) is quite clear that a party seeking to restrict access must make
a multi-part showing. It must: (1) identify the specific document for which restriction is
sought; (2) identify the interest to be protected and the reasons why that interest
outweighs the presumption of public access; (3) identify a clear injury that would result if
access is not restricted; and (4) explain why alternatives to restricted access—such as
redaction, summarization, stipulation, or partial restriction—are not adequate.
D.C.COLO.LCivR 7.2(c)(1)–(4). As a result, a party seeking to restrict access may not
simply point to confidentiality designations with respect to materials produced in
discovery and/or state that it “believes” (without evidentiary support) certain materials

6

are competitively sensitive in an attempt to secure wholescale sealing of entire legal
briefs and accompanying exhibits.

Whether a party has designated a document

“confidential” or even “attorney’s eyes only” is not dispositive, and may not even be
helpful, to the court’s analysis.

In addition, this court notes that the Tenth Circuit has

specifically advised that “parties should not routinely or reflexively seek to seal materials
upon which they predicate their arguments for relief...”

See Lucero v. Sandia Corp.,

495 F. App’x 903, 913 (10th Cir. 2012).
C.

Motion to Compel

Discovery under the Federal Rules has long been governed by the principles of
proportionality, i.e., the balance of various factors such as the issues presented in the
case, the amount in controversy, the parties’ resources, the importance of the discovery
in resolving the issues, and the burden and expense to the producing party. Fed. R. Civ.
P. 26(b)(2)(C) (former).

Indeed, these guideposts are so fundamental that the new

amendments to the Federal Rules, effective on December 1, 2015, restored these
factors back to Rule 26(b)(1), which defines the scope of discoverability. Fed. R. Civ. P.
26(b)(1) (eff. Dec. 1, 2015); Advisory Comm. Notes to Fed. R. Civ. P. 26(b)(1) (2015).2

2

The recent amendment to Federal Rule of Civil Procedure 26(b)(1), effective
December 1, 2015, reads “[u]nless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Pursuant to 28 U.S.C.
§ 2074(a) and the Order of the Supreme Court dated April 29, 2015, the amendment
shall govern all civil cases commenced after December 1, 2015 and “insofar as just and
practicable, all proceedings then pending.”
7

“Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing
responsibilities of the court and the parties to consider proportionality, and does not
place on the party seeking discovery the burden of addressing all proportionality
considerations.” Advisory Comm. Notes to Fed. R. Civ. P. 26(b)(1) (2015).
Under this District’s applicable case law, the parking seeking discovery has the
burden of establishing that the information sought is relevant to a claim or defense in the
case. Once the discovery sought appears relevant, the party resisting the discovery has
the burden to establish lack of relevance or that the information is of such marginal
relevance that the potential harm occasioned by the discovery outweighs the benefit of
production. See Simpson v. University of Colorado, 220 F.R.D. 354, 359-59 (D. Colo.
2004).
D.

Disclosures for Retained Expert Richard Gendreau

This court extensively discussed the applicable law relating to disclosures to be
made by Plaintiff’s expert, Richard Gendreau, in its October 1, 2015 Order denying
Third Party Syncora’s Motion for Protective Order. [#134]. As discussed in that Order,
Rule 26(b)(4)(D), which governs the discoverability of facts known or opinions held by
an expert who has been retained in anticipation of litigation but who is not expected to
be called as a witness at trial, did not apply to Mr. Gendreau’s opinions rendered as a
consulting expert in a prior lawsuit. [#134 at 10-11 citing Rocky Mountain Natural Gas
Co. v. Cooper Indus., Inc., 166 F.R.D. 481 (D. Colo. 1996)]. Now Syncora seeks to

See http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf.
This
court applies the principles of proportionality as discussed above, because they are the
same principles that have applied to discovery throughout this case.
8

protect Mr. Gendreau’s December 2013 draft document under the work product doctrine
pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure. [#168 at 4].
Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the work product
doctrine, even in those cases that arise under this court’s diversity jurisdiction. See
Frontier Refining Inc. v. Gorman–Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th
Cir.1998); Wellinger Family Trust 1998 v. Hartford Life & Accident Ins. Co., No. 11-cv2568-CMA-BNB, 2013 WL 2444714, *1 (D. Colo. Jan. 5, 2013). Under Rule 26(b)(3),
the work product doctrine protects confidential materials prepared in anticipation of
litigation or for trial. See Weitzman v. Blazing Pedals, Inc., 151 F.R.D. 125, 126 (D.
Colo. 1993); L-3 Comm’ns Corp. v. Jaxon Eng’g & Maintenance, Inc., No. 10-cv-02868MSK-KMT, 2015 WL 183303, *5 (D. Colo. 2014). Unlike the attorney-client privilege,
however, work product immunity is not automatically waived by any disclosure to a third
party. In re Sealed Case, 676 F.2d 793, 802-10 (D.D.C. 1982). The party seeking to
invoke work product immunity bears the burden of establishing that it applies.
Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 1984).
II.

Plaintiff’s Motion to Strike Non-Retained Experts
A.

Information Acquired Outside of the Normal Course of Duty

ARPA seeks to strike B&W’s non-retained experts on two separate grounds: (1)
the non-retained experts intend to testify about information acquired in anticipation of
litigation, or otherwise outside of the normal course of duty [#122 at 4], and as result,
B&W was required to propound a report for them; and (2) even if the non-retained
experts intend to testify about information for which they have percipient knowledge, the
disclosures themselves fail to be sufficiently specific under Rule 26(a)(2)(C).

9

B&W

contends that because the witnesses are not specially-retained, there is no instance
where they would be required to propound a report for them because they simply fall
outside of the scope of Rule 26(a)(2)(B) [#143 at 5-6]; even under ARPA’s reading of
Rule 26(a)(2)(B), B&W need not propound reports because reaching opinions regarding
the standard of care and whether B&W caused any of the problems at the LRP was “a
core aspect of B&W’s witnesses’ jobs as they were the engineers responsible for
designing and engineering the Boiler, and then attempting to address the issues ARPA
raised” [id. at 7-8]; and the summaries provided by B&W in its disclosures are sufficient
under the requirements pursuant to Rule 26(a)(2)(C) [id. at 8-9].
As to the first point, that Rule 26(a)(2)(B)’s report requirements turns only upon
the categorization of expert as “specially retained” versus “non-retained,” the court
acknowledges the appeal of B&W’s argument, but respectfully declines to adopt it. The
weight of authority in this District analyzes whether a report is required under Rule
26(a)(2)(B) based on the substance of the opinions to be offered, rather than the
categorization of the expert. See Carbaugh v. Home Depot U.S.A., Inc., Civil Action No.
13-cv-02848-REB-MEH, 2014 WL 3543714, *2 (D. Colo. July 16, 2014) (M.J. Hegarty);
Kemp v. Webster, Civil Action No. 09-cv-00295, 2012 WL 5289573, *2 (D. Colo. Oct.
26, 2012) (J. Jackson); Davis v. GEO Group, Civil Action No. 10-cv-02229, 2012 WL
882405, *2 (D. Colo. Mar. 15, 2012) (M.J. Tafoya); Scholl v. Pateder, Civil Action No.
09-cv-02959-PAB-KLM, 2011 WL 2473284, *3 (D. Colo. June 22, 2011) (M.J. Mix). See
also Trejo v. Franklin, Civil Action No. 04-cv-02523-REB-MJW, 2007 WL 2221433, *2
(D. Colo. July 30, 2007) (finding under former Rule that the substance of the expert’s
testimony, not the status of the expert, will dictate whether a Rule 26(a)(2)(B) report will

10

be required) (J. Blackburn).

Indeed, this application comports with the purpose of

expert disclosures to eliminate unfair surprise to the opposing counsel and provide the
court with sufficient information to perform its gatekeeper role.
A review of the materials filed by both Parties in this action reveals the following
undisputed facts: B&W agreed to design, engineer, and deliver a boiler in accordance to
the requirements of their Contract [#177 at 13]; modification of the initial design was
required [#56 at 1-2, #80 at 21-22]; B&W made three attempts to modify the boiler in an
attempt to meet air emissions guarantees [#35 at 1-2]; and at least most, if not all, of the
“non-retained experts” were integrally involved with the design, performance, and
modification of the boiler in the course of their regular scope of work. For instance,
ARPA identified Thomas L. Garabedian in the Amended Complaint [#80 at 14-22], and
also designates him as a will-call trial witness, and states that Mr. Garabedian will be
called “to testify about all aspects of B&W’s engineering, design and modification of the
LRP boiler.” [#173-1 at 1-2]. In addition, ARPA identifies Mikhail Maryamchik as a willcall witness “concerning all aspects of B&W’s boiler design, the failure of the boiler to
meet emissions guarantees, the SNCR system installed by B&W, and the modifications
designed and engineered by B&W.” [Id. at 2].

And while ARPA does not attribute any

specific technical knowledge to Roger Kleisley, as ARPA’s adverse witness regarding
B&W’s bid proposal for the LRP boiler and performance of the contract, Mr. Kleisley
necessarily had technical knowledge or ARPA would be unable to contend that “B&W
knew or should have known that its representations regarding the ability of its design to
meet the enumerated emissions limitations were false at the time they were made.”
[#80 at ¶ 108].

ARPA further identifies John Bullock, Perry Brescilli, and Vijay Parekh

11

as engineers involved with the modifications to the boiler as contemplated by B&W
[#173-1 at 4]; Perry Brescilli regarding the LRP’s inability to meet emissions
requirements [id. at 5], and Vijay Parekh regarding the tuning and testing for the LRP
[id. at 10]. The court concludes that based on the record before it, it appears that these
individuals would have been required to understand the standard of care, causation,
and industry standards that applied to the boilers; otherwise, ARPA’s claims that B&W
knew or should have known its representations regarding the ability of its design to
meet the enumerated emissions limitations were false at the time they were made
would not be viable. However, to the extent that B&W offers these witnesses to testify
as to ultimate conclusions, i.e., it was “reasonable” for B&W to act in a certain manner,
such testimony appears to be outside of the scope of these individual’s percipient
knowledge and the execution of their professional, non-litigation, duties. [#122-1]. This
court is not persuaded that despite the fact that these individuals were charged, in the
course of their professional duties, to design, engineer, and modify the boiler, those
professional duties extended to drawing a final conclusion that such actions were
“reasonable.” [#143 at 8].
Therefore, to extent that B&W intends or attempts to offer these witnesses to
testify about any topic that was outside of their duties and information gained apart from
the execution of their duties in designing, engineering, and/or modifying the LRP boiler
(including knowledge gained in assisting counsel in preparing to defend this action), this
court concludes that such testimony should not be permitted as these individuals have
not disclosed an expert report. Accordingly, this court denies ARPA’s request to strike
these individuals from providing expert witness testimony on the basis that they have

12

not propounded reports, but grants the motion to the extent that B&W seeks to offer
expert testimony as to the ultimate issues, such as “reasonableness” of B&W’s actions.
To the extent that B&W can establish that it was within these individuals’ non-litigation,
professional duties to independently ascertain “reasonableness,” or draw conclusions
on other ultimate issues, B&W may raise such issues to the presiding judge, the
Honorable Christine M. Arguello, at the appropriate time at trial, once an appropriate
foundation has been laid for the proffer.
B.

Sufficiency of Disclosures under Rule 26(a)(2)(C)

ARPA next seeks to strike Messrs. Maryamchik, Bullock, Parekh, Garabedian,
Brescilli, and Kleisley because the disclosures fail to provide a summary of the facts and
opinion as to which the witness is expected to testify. [#122 at 10]. While the court
agrees that a party cannot satisfy the requirement to produce a summary of facts and
opinions by merely pointing at large bodies of information [#122 at 9-10], pursuant to
this court’s review of the B&W’s Supplemental Disclosure of Non-Retained Experts
[#122-1], Rebuttal Disclosure of Non-Retained Experts [#122-2], ARPA’s disclosures of
these individuals as will-call or may-call witnesses for the purposes of design
engineering [#173-1], the court’s knowledge of the Parties’ extensive preparations for
this case (including the motions for summary judgment and supporting exhibits), and the
court’s ruling limiting any expert testimony by these non-retained experts only to
percipient knowledge and opinions arising from the performance of their normal,
professional duties, this court concludes that, in light of the totality of the circumstances
and in exercise of its sound discretion as guided by the case law, further disclosure
under Rule 26(a)(2)(C) is neither warranted nor proportional.

13

Accordingly, this court DENIES IN PART Plaintiff’s Motion to Strike NonRetained Experts to the extent that it seeks to preclude any expert testimony from
Mikhail Maryamchik, John Bullock, Vijay Parekh, Tom Garabedian, Perry Brescilli, and
Roger Kleisley; but GRANTS IN PART to the extent that B&W offers these individuals
to testify as to ultimate conclusions, such as reasonableness, that do not fall within the
execution of their normal, non-litigation professional duties.
III.

Plaintiff’s Motion to Compel
In Plaintiff’s Motion to Compel, ARPA renews its request to compel B&W to

produce additional design standards associated with the LRP boiler. [#128]. In support
of the motion, ARPA contends that its experts, Richard Gendreau and Craig Vogel,
have reviewed the design standards produced to date, the deposition testimony of Mr.
Maryamchik, and related discovery, and have concluded that there are other design
standards that impact emissions that have not been produced. [Id. at 1-2]. ARPA’s
request for design standards arises from its Interrogatory No. 5, which requested:
Describe in specific factual detail how B&W determined that the boiler
described in its Bid Proposal would meet the flue gas emission guarantees
set forth in Section 8 of the Bid Proposal, including all emissions modeling,
testing, and comparable facility data considered by B&W in connection
with the bid proposal.
[Id. at 2-3].

As this court previously noted, the Interrogatory is directed not at all

standards that could potentially affect the emissions of the LRP boiler, but at all
emissions modeling, testing, and comparable facility data considered by B&W in
connection with the bid proposal. [#94 at 8]. Accordingly, ARPA needs to establish at
least two prerequisites before a document can be responsive to this discovery request:
(1) that B&W considered it; and (2) B&W considered it when it put together its bid

14

proposal, as opposed to any modification that occurred after it was determined that the
boiler was not functioning as expected. Contrary to ARPA’s suggestion [#128 at 4-5;
#161 at 1-2], the court did not compel production of a standard so long as ARPA could
establish that there was “a clearly articulated nexus between the design standard
requested, and resulting boiler emissions.” [Id. at 9]. Rather, Interrogatory No. 5 was
limited in scope [#94 at 8]. To the extent that the court’s order or the subsequent
discussions during informal discovery conferences engendered confusion on the part of
Plaintiff regarding the applicable standard, this court now clarifies its ruling.
Based on the consideration of the record before it, in particular the testimony of
Mr. Maryamchik, this court finds that ARPA has not carried its burden of establishing
that the additional documents sought are responsive to Interrogatory No. 5, as
consistently interpreted by the court in this Order and in [#94].

Specifically, Mr.

Maryamchik appears to be referring only to the “emissions prediction design standard”
at the time the bid was submitted. [#146-1 at 24:2-15].3 The court is further persuaded
by the deposition testimony of both Mr. Gendreau and Mr. Vogel that they did not need
additional information in order to render their respective opinions.

[#146-1 at 3].

Therefore, Plaintiff’s Motion to Compel is DENIED.
IV.

Motions to Restrict
The court next turns to the Motions to Restrict that were filed by B&W arising

from the briefing of Plaintiff’s Motion to Strike. B&W seeks to restrict the unredacted
version of Mr. Gendreau’s declaration [#128-1], because it directly quotes from

3

In citing deposition transcript, this court refers to the docket number as assigned by
the court’s Electronic Court Filing (“ECF”) system, and the page and line numbers from
the original transcript.
15

proprietary standards, and B&W proposes a redacted version of Mr. Gendreau’s
declaration be filed as part of the public record. [#151, #151-1]. ARPA objects to the
restriction, stating that “[e]ssentially the same information has been published in B&W’s
book, Steam, Its Generation and Use, which is publicly available through Amazon.”
[#154 at 2]. In Reply, B&W does not address whether essentially the same information
has been published through its book, but rather, takes issue with ARPA’s disclosure of
B&W’s proprietary information to the public at large without prior permission of the court.
[#155 at 2].
Over B&W’s objection and at ARPA’s urging, this court declined to amend the
Protective Order in this matter to add a second, “attorney’s eyes only” tier under which
B&W could designate its design standards. [#94 at 31]. However, B&W designated the
design

standards

produced

as

Bates-labeled

HC-Babcock0000001-24

as

CONFIDENTIAL under the Protective Order [#22], which provided that any request to
restrict would comply with D.C.COLO.LCivR 7.2. [#22 at ¶ 8]. Even had the Parties
agreed to redact the quotation from the design standards in Mr. Gendreau’s declaration
[#128-1], the court would still be required to independently determine whether the
portion proposed to be redacted was appropriately restricted. See Avantgarde Surgical,
Inc. v. Rocky Mountain Hosp. & Med. Serv., Inc., Civil Action No. 08-cv-02103-MSKCBA, 2008 WL 5335777, *3 (D. Colo. Dec. 18, 2008).
In comparing the portions of Mr. Gendreau’s declaration [#128-1] to ARPA’s
submission [#154-1], it appears that the excerpts from the design standards do not
reflect information that is not already in the public domain.

B&W is but one entity

addressing emissions from power plants, and there is no specificity regarding how B&W

16

weighs the various factors or calculates the emissions for its particular boilers. While
B&W’s particular methodology for predicting or calculating emissions may be
proprietary, the fact that certain variables scientifically affect emissions appears to be
part of the public, scientific discourse regarding greenhouse emissions. Based on the
record before it, this court concludes that B&W has failed to carry its burden of
establishing that the information as disclosed in Mr. Gendreau’s declaration is entitled to
restriction under D.C.COLO.LCivR 7.2, Nixon v. Warner Communications, or its
progeny. Therefore, this court DENIES B&W’s Motion to Restrict.
As to Defendant’s second Motion to Restrict [#160] that seeks to redact a portion
of its Response to the Motion to Compel due to its discussion of the Emissions design
standard [#146], the court finds that while B&W’s discussion of its own design standards
is more detailed than that of Mr. Gendreau’s discussion, the same analysis as set forth
above applies. While variables affecting the NOx emissions are identified, B&W has
failed to establish that the discussion as set forth in its Response to the Motion to
Compel reveals any trade secrets or other proprietary information.

The variables

themselves appear to be discussed in varying degrees through public sources like
scientific journals. Accordingly, this court DENIES B&W’s second Motion to Restrict.4

4

In denying the Motions to Restrict, the court notes that the Protective Order does not
set forth any additional procedure for the Parties to follow regarding documents
designated under the Protective Order, other than compliance with Local Rule 7.2. [#22
at ¶ 8]. Therefore, out of an abundance of caution to avoid any unnecessary dispute
between the Parties going forward, the court directs any Party filing documents that
have been designated by either Party as CONFIDENTIAL under the Protective Order, to
do so under restriction, either with an accompanying Motion to Restrict or permitting the
other party to file an appropriate Motion to Restrict within the time period contemplated
by Local Rule 7.2(e). D.C.COLO.LCivR 7.2(e). The court notes, however, that the
Tenth Circuit has advised parties not to simply reflexively file for restriction, particularly
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In denying these Motions to Restrict, this court does not pass on the distinct
issue of whether the design standards, as presented in their totality, should be restricted
from public access. That issue is not before the court, and the Parties may wish to
separately raise any issue of the treatment of such design standards at trial to Judge
Arguello.
V.

Mr. Gendreau’s December 2013 Draft Report
The final two motions, one filed by third-party Syncora and one filed by ARPA,

seek to prevent the disclosure of a draft report created by Richard Gendreau, ARPA’s
testifying expert, in December 2013 and subsequently provided to counsel for ARPA
after Mr. Gendreau’s retention as a testifying expert in this matter. [#168, #169]. In so
seeking, Syncora and ARPA rely on the attorney work product doctrine, as provided for
under Rule 26(b)(3)(A) and (B) and the common interest doctrine, and Rule 26(b)(4)(B).
[#168 at 4-5; #169 at 2]. Originally, Syncora sought, with ARPA’s support, to preclude
discovery on Mr. Gendreau’s opinions that he rendered as a non-testifying consultant
for Syncora in a separate case based on Rule 26(b)(4)(D) as “core work product” of a
non-testifying expert. [#108 at 4-5]. Syncora made the point that it, not ARPA, was the
party with standing to protect its work product. [Id. at 7]. Indeed, both Parties depicted
their relationship as one at arms’ length. Syncora argued that there was “a bright line
between Mr. Gendreau’s two expert roles.” [#108 at 10]. ARPA insisted that “there is
no evidence that Mr. Gendreau ever considered his work for Syncora in rendering
opinions for ARPA,” [#110 at 2], and Rick Rigel, ARPA’s General Manager, attested that
Mr. Gendreau never shared any of the opinions he developed for Syncora with ARPA.

when information forms the basis of a party’s request for relief. See Lucero v. Sandia
Corp., 495 F. App’x 903, 913 (10th Cir. 2012).
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[Id. at 6]. This court concluded that due to Syncora’s non-party status to this litigation,
Rule 26(b)(4)(D) did not apply. [#134]. In doing so, this court observed that Syncora
had not identified any other basis to preclude discovery from Mr. Gendreau’s opinions
regarding the 2012 modification. [Id. at 13-14]. The court expressly found “no grounds
to prohibit discovery of Mr. Gendreau’s opinions regarding the 2012 modification.” [Id.]
Neither Syncora nor ARPA objected to the court’s Order pursuant to Rule 72(a).  
Syncora and ARPA now identify different, albeit related, Rules to preclude
discovery of Mr. Gendreau’s December 2013 Draft. The court first considers ARPA’s
argument that B&W’s discovery requests do not actually encompass Mr. Gendreau’s
December 2013 Draft.

After reviewing B&W’s discovery requests and ARPA’s

responses, this court respectfully disagrees. B&W specifically requested production of
expert reports made in the matter of Syncora Guarantee, Inc. v. City of Trinidad, Civil
Action No. 13-cv-1332 in the United States District Court for the District of Colorado.
[#175-3 at 52-53].

The request is not limited to final expert reports.

[Id.]

In its

objection, ARPA does not object to the Request on the basis it encompasses non-final
drafts. Instead, ARPA objected that this Request, “to the extent it seeks information in
the possession, custody or' control of third parties that are beyond Plaintiff's control,
including information regarding the Syncora Guarantee Inc. lawsuit, to which Plaintiff is
not a party.” [Id. at 53]. ARPA’s counsel contended at oral argument that ARPA did not
have possession, custody and control of Mr. Gendreau’s December 2013 Draft; only
outside counsel did and outside counsel was not obligated under the discovery requests
to produce the document. But the definitions of “You,” and “ARPA” in B&W’s discovery
requests encompassed its attorneys [#169-5 at 2], and ARPA’s objections to the

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definition of “You,” and “ARPA” [#175-3 at 4] or Request for Production No. 17 [id. at 52]
did not exclude its attorneys. Therefore, this court concludes that at least Request for
Production No. 17 called for Mr. Gendreau’s December 2013 Draft.
The remainder of Syncora’s and ARPA’s arguments, while not styled as such,
are essentially, requests for reconsideration of the court’s October 1 Order based on
Rules and arguments that were not previously briefed. A motion for reconsideration
“falls within a court's plenary power to revisit and amend interlocutory orders as justice
requires.” United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06–cv–00037PAB-CBS, 2010 WL 420046, *3 (D. Colo. Feb. 1, 2010); see also Fed. R. Civ. P. 54(b)
(“[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action as
to any of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties' rights and liabilities.”). Courts in
this district have applied different standards on motions for reconsideration of non-final
orders. See United Fire & Cas. Co., 2010 WL 420046, *3 (listing cases applying Rule
59(e) standard, Rule 60(b) standard, and “law of the case” standard). Nonetheless, the
prevailing approach demonstrates that courts consider whether new evidence or legal
authority has emerged or whether the prior ruling was clearly in error. See James v.
Dunbar, No. 09–cv–02479-PAB, 2010 WL 3834335, at *1 (D. Colo. Sep. 27, 2010).
None of the arguments forwarded by either Syncora or ARPA are based on new
evidence or law that has emerged since the court’s October 1 Order, and this court is
disinclined to give the Parties an opportunity to re-litigate an issue that has already been
decided when the proposed grounds could have been raised during the prior briefing.

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In addition, though it need not pass on this issue in resolving the instant motions,
the court briefly addresses Syncora’s and ARPA’s new argument that any shared
document between them is protected from disclosure based on a common interest.
First, the work product doctrine exists to protect a party’s preparation for litigation. It is
unclear how Mr. Gendreau’s draft created in December 2013, before this action was
initiated and before Mr. Gendreau was retained by ARPA, could reflect any work
product of ARPA or its counsel in this litigation, as ARPA and its counsel has been
repeatedly insistent that the two matters are separated by a “bright line.” Second, to
invoke a common interest privilege, parties must establish that they share a common
legal interest. See Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 705
(10th Cir. 1998). Despite Syncora and ARPA’s agreement that they have agreed to
proceed under a common interest, the court is not persuaded, based on the record
before it, that there is a common legal interest, rather than a common financial interest.
Syncora did not contract with B&W; it did not rely upon B&W’s alleged
misrepresentations to its detriment; and Syncora did not (and most likely, could not) sue
B&W. ARPA was not a party to the action by Syncora against Trinidad. Syncora and
ARPA’s shared objective is “to maximize ARPA’s recovery of damages,” which is not a
legal interest but a financial one, and should not be the basis for extending either the
attorney-client privilege or work product immunity. See Zepter v. Dragisic, 237 F.R.D.
185, 190 (N.D. Ill. 2006) (rejecting a common interest based on a common financial
interest in settling the case).

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Accordingly, for the reasons set forth in this Order and in this court’s October 1
Order, this court DENIES Syncora’s Second Motion for Protective Order and ARPA’s
Motion for Protective Order.
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
(1)

Plaintiff’s Motion to Strike Defendant’s Disclosure of Non-Retained

Experts [#122] is GRANTED IN PART and DENIED IN PART, and the testimony of
B&W’s non-retained experts will be limited consistent with this Order;
(2)

Plaintiff’s Motion to Compel Production of Design Standards [#128] is

DENIED;
(3)

Defendant’s Motion to Restrict Access to a Portion of Exhibit 1 in Support

of ARPA’s Motion to Compel Production of Design Standards [#151] is DENIED;
(4)

The Clerk of the Court is DIRECTED to UNRESTRICT [#128-1];

(5)

Defendant’s Motion to Restrict Access to a Portion of Defendant’s

Response to ARPA’s Motion to Compel Production of Design Standards [#160] is
DENIED;
(6)

The Clerk of the Court is DIRECTED to UNRESTRICT [#146]

(7)

Non-Party Syncora Guarantee Inc.’s Brief Pursuant to the Court’s

November 15, 2015 Courtroom Minutes/Minute Order [#168] is DENIED;
(8)

Arkansas River Power Authority’s Brief Pursuant to the Court’s November

25, 2015 Courtroom Minutes/Minute Order [#169] is DENIED;
(9)

Counsel for ARPA will PRODUCE a copy of Mr. Gendreau’s December

2013 Draft Report to B&W no later than January 22, 2016; and

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(10)

No further discovery in this matter will be permitted, including the

further deposition of Richard Gendreau, without a showing of extraordinary
circumstances.

DATED: January 15, 2016

BY THE COURT:

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

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