Vellali et al v. Yale University et al

Filing 263

ORDER: For the reasons set forth in the attached document, Defendants' Motion to Compel Plaintiffs' Experts Al Otto and Daniel Alexander to Answer Certain Deposition Questions (ECF Nos. #219 and #220 ) is hereby DENIED, and Plaintiffs' Motion for Protective Order Regarding Discovery of the Identities and Data of Their Experts' Clients (ECF Nos. #229 and #230 ) is hereby GRANTED. Signed by Judge Alvin W. Thompson on 9/28/2020. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------JOSEPH VELLALI, NANCY S. LOWERS,
JAN M. TASCHNER, and JAMES
MANCINI, individually and as
representatives of a class of
participants and beneficiaries
on behalf of the Yale University
Retirement Account Plan,

x
:
:
:
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
YALE UNIVERSITY, MICHAEL A.
:
PEEL, and THE RETIREMENT PLAN
:
FIDUCIARY COMMITTEE,
:
:
Defendants.
:
-------------------------------- x

Civil No. 3:16-cv-1345(AWT)

ORDER RE DEFENDANTS’ MOTION TO COMPEL AND
PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER
For the reasons set forth below, Defendants’ Motion to Compel
Plaintiffs’ Experts Al Otto and Daniel Alexander to Answer Certain
Deposition Questions (“Defs.’ Mot. to Compel”) (ECF Nos. 219 and
220) is hereby DENIED, and Plaintiffs’ Motion for Protective Order
Regarding Discovery of the Identities and Data of Their Experts’
Clients (ECF Nos. 229 and 230) is hereby GRANTED.
Legal Standard
Federal

Rule

of

Civil

Procedure

26(a)(2)(B)(ii)

requires

disclosure of “the facts or data” considered by an expert witness
in forming his or her opinion. “[F]acts or data [is] to be
interpreted

broadly

to

require

disclosure

of

any

material

considered by the expert, from whatever source, that contains
factual ingredients. The disclosure obligation extends to any
facts or data ‘considered’ by the expert in forming the opinions
to be expressed, not only those relied upon by the expert.” 2010
Advisory Committee Note; see also In re Methyl Tertiary Butyl Ether
(MTBE) Prod. Liab. Litig., 293 F.R.D. 568, 577 (S.D.N.Y. 2013)
(“[T]he 2010 Amendment to Rule 26 requires disclosure of ‘material
of a factual nature’ considered by testifying experts. . . .
Attorneys’

theories

or

mental

impressions

are

protected,

but

everything else is fair game.”) (internal quotations and citations
omitted). This includes information explicitly relied upon in an
expert

report

irrespective

of

claims

of

confidentiality.

See

Lugosch v. Congel, 219 F.R.D. 220, 250 (N.D.N.Y. 2003) (disclosure
of work papers required by Rule 26, notwithstanding work product
protection, because expert considered and specifically referred to
the work papers in his expert report).
Where

an

expert

acknowledges

relying

on

or

otherwise

considering facts or data in forming an opinion, that material has
been placed directly in issue. In U.S. Surgical Corporation v.
Orris, Inc., 983 F. Supp. 963, 970 (D. Kan. 1997), the plaintiff
argued that its expert should not have been compelled to reveal to
the defendants the identities of individuals who participated in
a survey conducted by its expert because the expert “promised the
individuals that their identities would remain confidential.”

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The

court concluded that the “plaintiff should not be able to conduct
a survey for litigation and subsequently protect the survey from
scrutiny

by

promising

confidentiality

to

the

participants.

Plaintiff has placed the survey’s underlying data directly in issue
by relying on the survey in plaintiff’s motion for partial summary
judgment.” Id.
One Source Environmental, LLC v. M + W Zander, Inc., No. 12cv-145, 2015 WL 4663851 (D. Vt. Aug. 6, 2015), provides a helpful
example of the distinction between the type of situation where
material has been considered for purposes of Rule 26(a)(2)(B) and
the type of situation where it has not. There, the plaintiff used
a damages expert who “relied on many sources of information in
forming his opinions on industry custom and practice, including
his own library of more than 275 representative agreements.” Id.
at *1. In his report, the expert stated:
In my history of dealing with representative agreements,
dating back to the 1970s, I remember dealing with no
agreements that allowed a manufacturer to retain a
portion
of
the
manufacturers’
representative’s
commissions for itself. I sampled my library of over 275
representative agreements and could find no example of
an agreement whereby a manufacturer could trim the
commissions
it
pays
out
by
claiming
that
the
manufacturer performed activity during the selling
process.
Id. The defendants sought to obtain all of the agreements in the
expert’s professional library. The court denied the motion to
compel. It stated:

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The question is whether the 275 agreements contain
factual ingredients. At first blush it seems that they
do because the contents of each agreement are a small
piece of the puzzle informing [the expert’s] overall
opinion regarding common practice in the industry.
However, the content of any single agreement has little
significance on its own. It is the aggregate impression
[the expert] took away from his library and his
familiarity with other agreements that represent the
crux of his conclusions.
The contents of the sample of agreements [the expert]
specifically consulted, however, are more significant.
It is possible that those particular agreements do not
support [the expert’s] opinion in every respect. The
Defendants
are
entitled
to
understand
what
the
agreements in the sample say in case they provide fodder
for cross examination.
Id. at *2.
Federal Rule of Civil Procedure 26(b)(4)(A) provides that
“[a] party may depose any person who has been identified as an
expert whose opinions may be presented at trial.”
Rule 26(c) provides that:
A party or any person from whom discovery is sought may move
for a protective order in the court where the action is pending
. . . . The court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery; . . .
(D) forbidding inquiry into certain matters, or limiting the
scope of disclosure or discovery to certain matters; . . .
(G) requiring that a trade secret or other confidential
research, development, or commercial information not be
revealed or be revealed only in a specified way; . . .

Discussion
The defendants move to compel the plaintiffs’ experts Daniel
Alexander and Al Otto to answer certain deposition questions they

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declined to answer. The defendants argue that “Plaintiffs’ experts
refused to answer a number of questions regarding their prior work
experience, despite relying on that experience to determine their
opinions in this case.” Defs.’ Mot. to Compel at 1.
With

respect

to

Alexander,

the

defendants

maintain

that

“Alexander expressly stated that the opinions in his report are
‘based on [his] review and analysis of documents produced in this
case, testimony, other information provided to [him], and [his]
years

of

experience

providing

administrative

and

financial

services in the retirement plan industry.” Defs.’ Mem. at 2-3, ECF
Nos. 219-1 and 220-1. The pertinent part of Alexander’s report
states:
The opinions in this report are based on my review and
analysis of documents produced in this case, testimony,
other information provided to me, and my years of
experience
providing
administrative
and
financial
services in the retirement plan industry.
The
documents, testimony, and other materials that I have
considered in formulating my opinions are listed in
Exhibit 1. I reserve the right to amend, supplement, or
revise my opinions if additional facts are presented in
discovery or otherwise.
Defs.’ Ex. A: Expert Report Daniel Alexander at 2, ECF No. 220-3.
With respect to Otto, the defendants maintain that:
Otto’s report explicitly states that his opinions are
‘based on [his] knowledge and experience in the defined
contribution plan industry’ and ‘in the engagement and
compensation received by recordkeepers for such plans.’”
[Defs.’ Ex. E: Expert Report of Al Otto] at ¶¶ 2-3; see
also id. [at] ¶ 207 (stating that Otto relied on his
knowledge of the recordkeeping industry and experience
advising defined contribution plans when he adopted the

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views of another of Plaintiffs’
“reasonable” recordkeeping fees).

experts

regarding

Defs.’ Mem. at 9. The pertinent parts of Otto’s report state:
In particular, based on my knowledge and experience in
the defined contribution plan industry, I have been
asked to apply the standard of care, skill, prudence,
and diligence that a knowledgeable and prudent fiduciary
would
have
applied
in
the
administration
and
recordkeeping for plans like the Plan, including
immediately preceding 2010 to the present. I also
applied my knowledge and expertise in the engagement and
compensation received by recordkeepers for such plans
and provided my opinion as to whether the Plan’s
fiduciaries discharged their duties to the Plan with
that same level of care, skill, prudence, and diligence
from 2010 to present.
. . . .
A list of the materials considered in this matter is
attached hereto as Exhibit 1.
. . . .
Based on my knowledge of the recordkeeping industry and
experience advising defined contribution plans regarding
recordkeeping fees, I adopt Ty Minnich’s reasonable fees
in his August 19, 2019 Expert Report . . .
Defs.’ Ex. E: Expert Report of Al Otto at ¶¶ 2, 4, 207.
The court concludes, with respect to each of Alexander and
Otto, that his reference to his years of experience in a specific
field is in substance merely part of the explanation as to why he
is qualified to give the opinions set forth in his report.
Fed. R. Evid. 702.

See

More is needed to show that either of these

experts considered any particular experience he had during the
course of an extensive career in forming his opinions in this case.

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The collection of the individual professional experiences over the
years for these two experts is akin to the expert’s professional
library in One Source Environmental.
Alexander avers that he did not consider discrete client work
or data in forming his opinions. See Decl. of Alexander at ¶ 17
(“In preparing the Report and Rebuttal Report, I did not review
any documents or data obtained from any previous engagement. . .
. I did not review any client lists, prior client assignments, or
confidential conversations. I did not review any documents or data
from any other source not specifically identified in the Report or
Rebuttal Report, or specifically discussed during my deposition on
November 20, 2019.”).
Otto avers that while his “general professional experience .
. . provided a significant basis for [his] opinions”, he did not
rely on specific client work or consider “distinct client data” in
forming his opinions in this case.

See Decl. of Otto at ¶ 5.

See

also id. at ¶ 6 (“In preparing the Report, I did not review or
otherwise consider any documents or data obtained from any of my
clients, from the files of Shepherd Kaplan, Veriphy Analytics,
Verity Asset Management, from the files of an related entity, or
from any other source not specifically identified in the Report.”).
The defendant asserts that “Otto confirmed that he intended
to rely on his experience with those clients to formulate his

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opinion in this case”.

Def.’s Mem. at 11.

They cite to the

following testimony during Otto’s deposition:
Q. And are you intending to rely on your experience
with those clients as part of your experience in
formulating your opinions for this case?
A. Yes.
Id. At 1l. However, this answer merely confirmed that Otto’s
experience with those clients was part of his general
professional experience.

Otto did not say that any particular

experience with such a client had been considered in forming his
opinions in this case.
The plaintiff seeks an order protecting from disclosure the
identities of clients of Alexander and Otto and information about
those clients; this information was not considered by those experts
in forming their opinions in this case.

The defendants argue that

they are entitled to discovery into the qualifications of Alexander
and Otto.

The court agrees.

The defendants also argue that

“Confidential information is not inherently privileged.

See Fed.

Opn Mkt. Comm. V. Merrill, 443 U.S. 340, 362 (1979) (noting that
‘there is no absolute privilege for trade secrets and similar
confidential information’).

Def.’s Mem. at 15.

The court agrees

but that is not the plaintiff’s position.
“A customer list developed by a business through substantial
effort and kept in confidence may be treated as a trade secret and
protected

at

the

owner's

instance

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against

disclosure

to

a

competitor, provided the information it contains is not otherwise
readily ascertainable.”

N. Atl. Instruments, Inc. v. Haber, 188

F.3d 38, 44 (2d Cir. 1999) (internal quotes and citation omitted).
To qualify as a trade secret, information cannot be “[m]atters of
public knowledge or of general knowledge in an industry” and “a
substantial element of secrecy must exist, to the extent that there
would be difficulty in acquiring the information except by the use
of

improper

means.”

Garden

Catering-Hamilton

Avenue,

LLC

v.

Wally’s Chicken Coop, LLC, 30 F.Supp.3d 117, 138 (D. Conn. 2014)
(citing Town & Country House & Homes Serv., Inc. v. Evans, 150
Conn. 314, 318-19).
Here the declarations of Alexander and Otto demonstrate that
the identities of their clients are confidential and proprietary
and that disclosing client identities would violate those clients’
expectations of confidentiality and potentially adversely affect
those clients in other ways.

Considerable effort, including

requiring confidentiality agreements, has been made by entities
employing Alexander and Otto and clients of those entities to
preserve the confidentiality of client identities and client data.
The defendant’s assert that they would like to be able to
investigate the representations made by Alexander and Otto about
their experience and qualifications.

The defendant’s desire for

discovery to gather information that may turn out to be useful
for purposes of impeachment does not outweigh the interest of

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the plaintiff’s experts and their clients in preserving the
confidential information at issue here.

The defendant’s own

expert, Glenn Poehler took the same position during his
deposition, asserting that such information was confidential and
should not be disclosed.

See Poehler Depo. at p. 108, ll. 14-

20.
Accordingly, the motion for a protective order should be
granted.
It is so ordered.
Dated this 28th day of September 2020, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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