United States of America et al v. Dish Network LLC

Filing 332

OPINION entered by Judge Sue E. Myerscough on 10/9/2013. Plaintiffs' Objection to Opinion 240, d/e 249 is GRANTED IN PART. (SEE WRITTEN ORDER) (MAS, ilcd)

E-FILED

Wednesday, 09 October, 2013 04:13:15 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant,

)
)
)
)
)
)
)
)
)
)
)
)

No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Objections to Opinion 240
Pursuant to Fed. R. Civ. P. 72(a) (d/e 249) filed by Plaintiffs United
States of America, and the States of California, Illinois, North Carolina,
and Ohio. In Opinion 240, United States Magistrate Judge Byron G.
Cudmore granted in part and denied in part Plaintiffs’ Motion to
Compel and Reopen the Deposition of Ken Sponsler and Motion to
Compel Discovery Over Dish’s Privilege Assertion (d/e 203).

Plaintiffs object to Opinion 240 in two respects. First, Plaintiffs
object to Magistrate Judge Cudmore’s interpretation of the scope of
“considered” as used in Rules 26(a)(2)(B)(ii) and 26(b)(4)(C)(ii) of the
Federal Rules of Civil Procedure. Plaintiffs assert that this Court should
find the term “considered” encompasses all aspects of an expert’s prior
retentions that objectively involve the subject matters covered by the
expert’s report. Second, Plaintiffs object to Magistrate Judge Cudmore’s
determination that Dish was not required to disclose documents
(including 22 documents1 on Dish’s privilege log) relating to data given
by Dish to John Taylor and PossibleNow for prior call record analyses
performed in 2008.
I. INTRODUCTION
The facts and background pertaining to this dispute are accurately
set forth in Magistrate Judge Cudmore’s Opinion (d/e 240). To

The 22 documents include 11 documents Magistrate Judge Cudmore had previously
reviewed and 11 documents that were not submitted to Judge Cudmore before his
ruling. Magistrate Judge Cudmore reserved ruling on those 11 documents and
directed that they be submitted in camera. See Opinion, p. 19 (d/e 240). Rather
than have Judge Cudmore review those additional 11 documents, this Court will
review them.
1

Page 2 of 27

summarize, Plaintiffs sought to compel the disclosure of information
provided to two of Dish’s expert witnesses, Ken Sponsler, Vice President
and General Manager of CompliancePoint, DM Inc. (CompliancePoint),
a wholly-owned subsidiary of Possible Now, Inc. (PossibleNow), and
John Taylor, Director of Project Management and Quality Assurance for
PossibleNow. Plaintiffs also sought to reopen the deposition of Sponsler.
In October 2012, Sponsler provided an expert report in rebuttal to
the expert report provided by Plaintiffs’ witness Debra Green. However,
Sponsler had previously consulted for Dish for many years on matters
including telemarketing compliance.
Taylor conducted an analysis of Dish’s call records for the time
period of 2007 through 2010 (the 2012 Analyses) and provided a report.
Taylor had previously performed similar analyses of call records for the
time period of 2004 through 2007during settlement negotiations with
the Federal Trade Commission in this case (the 2008 Analyses).
Magistrate Judge Cudmore substantially granted Plaintiffs’ Motion.
Judge Cudmore: (1) ordered that Dish make Sponsler available for an
Page 3 of 27

additional deposition, not to exceed three hours, at which Plaintiffs may
inquire about facts and data that Sponsler learned during his past
experience which he considered in forming his opinions, including facts
and data that he learned during his experience with both Defendant Dish
Network, L.L.C., and other businesses2; (2) overruled Dish’s claim of
privilege for disclosing (a) the identity of the businesses with which
Sponsler worked and (b) the facts and data that Sponsler learned from
his experience with Dish and other clients and considered in formulating
his opinions; (3) directed Dish to disclose any additional documents
related to Sponsler’s prior experience with Dish that contain facts and
data that Sponsler considered in formulating his opinions; and (4)
ordered that Dish disclose the facts or data that Joey Montano, currently
the Resource Manager for Customer Service Center Administration at
Dish, supplied to Taylor and that Taylor considered in preparing his
expert opinions, if such information had not already been disclosed.

Sponsler made specific references to his consulting work for other companies in his
report.

2

Page 4 of 27

Magistrate Judge Cudmore also re-reviewed 11 documents that
Plaintiffs claimed Dish must disclose due to using Sponsler and Taylor as
expert witnesses. Magistrate Judge Cudmore found that “Rule 26(b)(4)
did not waive the attorney client privilege” that he had already found
applied to 10 of the documents. Opinion 240, p. 14. Magistrate Judge
Cudmore found that the remaining document, EKDW 00477902, would
remain privileged because the work-product privilege was not waived.
Judge Cudmore reserved ruling on 11 additional documents listed in the
Motion because those documents had not yet been submitted for review.
Those 11 documents have now been submitted to the Court.
Despite substantially prevailing on the Motion, Plaintiffs object to
Judge Cudmore’s Opinion in two respects. First, Plaintiffs assert that
Opinion 240 seems to hold that a party may withhold work product
given to a testifying expert during a past retention so long as the expert
says he did not consider the information in forming his new opinions,
even if the prior work product relates to the expert’s new opinions.
Second, Plaintiffs assert that Opinion 240 improperly holds that Dish is
Page 5 of 27

not required to disclose facts, data, and assumptions given to Taylor for
his 2008 Analyses.
Plaintiffs ask this Court to: (1) hold that “considered” under Rule
26(a)(2)(B) encompasses all information an expert received during prior
retentions if the information relates to the subject matter in the expert
report; and (2) order Dish to produce the 22 withheld documents and all
other documents or information not yet disclosed that identify facts,
data, or assumptions Taylor used to perform the 2008 Analyses.
II. LEGAL STANDARD
A magistrate judge may hear and determine matters that are not
dispositive of a claim or defense. See Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A). Routine discovery matters are generally considered
nondispositive. Westefer v. Snyder, 472 F. Supp. 2d 1034, 1036 (S.D.
Ill. 2006). When a district court considers objections to a magistrate
judge’s ruling on a nondispositive matter, the magistrate judge’s
disposition will be set aside only if it is clearly erroneous or contrary to
law. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A).
Page 6 of 27

III. 2010 AMENDMENTS TO RULE 26
Federal Rule of Civil Procedure 26(a)(2)(A) requires that a party
disclose “the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P.
26(a)(2)(A). That disclosure must be accompanied by the written report
of any witness retained or specially employed to provide expert testimony
in the case. Fed.R.Civ.P. 26(a)(2)(B).
Following the 2010 amendments to Rule 26, Rule 26(a)(2)(B)
required that the written report contain, among other things, “the facts
or data considered by the witness” in forming his opinions, as opposed to
“data or other information” as had been required by the former Rule.
See Fed.R.Civ.P. 26, Advisory Committee Notes to the 2010
Amendments. The Advisory Committee Notes indicate that requiring
the disclosure of “facts or data” was “meant to limit disclosure to
material of a factual nature by excluding the theories or mental
impressions of counsel” but at the same time should be “interpreted

Page 7 of 27

broadly to require disclosure of any material considered by the expert,
from whatever source, that contains factual ingredients.” Id.
The 2010 amendments did not change the meaning of the term
“considered.” Fialkowski v. Perry, 2012 WL 2527020, at *3 (E.D. Pa.
June 29, 2012). Moreover, the Advisory Committee specifically notes
that “[t]he 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.” Fed.R.Civ.P. 26, Advisory Committee Notes
to the 2010 Amendments.
The 2010 amendments also added Rule 26(b)(4)(C). Rule
26(b)(4)(C) “provide[s] work-product protection for attorney-expert
communications regardless of the form of the communications,” except
for communications that (i) relate to compensation for the expert's study
or testimony; (ii) identify facts or data that the party's attorney provided
and that the expert considered in forming the opinions to be expressed;
or (iii) identify assumptions that the party's attorney provided and that
the expert relied on in forming the opinions to be expressed.
Page 8 of 27

Fed.R.Civ.P. 26(b)(4)(C); Advisory Committee Notes to the 2010
Amendments. “The rule does not exclude protection under other
doctrines, such as privilege or independent development of the workproduct doctrine.” Advisory Committee Notes to the 2010
Amendments; see also Yeda Research & Development Co., Ltd. v. Abbott
GmbH & Co. KG, --- F.R.D. ---, 2013 WL 2995924, at *7 (D.D.C. June
7, 2013) (“The 2010 amendment was, in essence, an effort to reign in
courts that had held that the disclosure requirement of Rule 26(a)(2)(B)
trumped all claims of privilege” and also noting that the theories and
mental impressions of attorneys are protected) (emphasis in original).
IV. ANALYSIS
A.

Plaintiffs Are Entitled to All Relevant Facts and Data on the
Subject Matters Covered by Sponsler’s Expert Report that Sponsler
Acquired by Reason of His Prior Work for Dish
Sponsler provided a rebuttal report in response to the expert report

by Plaintiffs’ expert Debra Green. Green’s report contained her opinion
on whether Dish’s efforts to achieve and enforce compliance with the
telemarketing laws met industry standards. Green opined that Dish (1)
Page 9 of 27

failed to establish effective measures and policies to prevent calls to the
do-not-call list, (2) did not have an effective internal compliance
program, (3) did not conduct itself in accordance with industry practice
with respect to ensuring that outside retailers complied with
telemarketing laws, and (4) failed to take meaningful enforcement action
when it learned that its retailers violated the law which created an
environment that allowed Dish retailers to continue committing such
violations as long as they were generating additional sales.
Dish asserts that it only asked Sponsler to provide an opinion on
Green’s characterizations of the relationships among sellers,
telemarketers, vendors, and others involved in the telemarketing process
and the bearing those characterizations have on Dish’s business
relationships. Dish limited Sponsler to reviewing the Green Report and
the materials Green relied on for her opinion.3

Green reviewed the Amended Complaint, various depositions, sample call records,
and selected discovery.

3

Page 10 of 27

However, Sponsler’s Report appears to do much more than provide
an opinion on Green’s characterizations of the relationships among
sellers, telemarketers, vendors, and others involved in the telemarketing
process and the bearing those characterizations have on Dish’s business
relationships. In particular, Sponsler gives the following opinions in his
Report:
*

Dish-Retailers relationships in terms of compliance
responsibilities can be extremely complex.

*

Dish expends significant resources to determine the
nature of the complaint and initiate reasonable
measures in an attempt to prevent future occurrences.

*

The “reasonableness” of these measures is highly
variable and for the most part is determined by the
severity and magnitude of the perceived noncompliance.

*

I have observed human or technology errors that have
resulted in thousands of potentially violative dials by
companies with an otherwise flawless compliance
record.

*

Dish is continually challenged to balance the goals of
business, consumer privacy, public image, and the
retailer relationship.

Page 11 of 27

*

Dish has limited control and recourse options in retailer
relationships with severing of the contract being the
ultimate course of action.

*

It is for this reason that Dish often expends significant
resources to identify issues and work to remediate
corrective measures even though they have little control
over the operational compliance processes of other
Sellers such as retailers.

Plaintiffs claim such information must have come from Sponsler’s prior
work for Dish.
Following a deposition, during which Dish’s counsel objected to
Plaintiffs’ counsel’s inquiries into Sponsler’s past experience with Dish,
Plaintiff filed a motion to compel. See d/e 203. Plaintiffs asked the
Court to, among other things, require Dish to produce documents,
communications, and information provided by Dish and its retailers to
Sponsler on the subject matter covered by the expert reports. See d/e
203, p. 18.
Citing Fidelity Nat’l Title Ins. Co. of New York v. Intercounty
Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005), Magistrate Judge
Cudmore held that Sponsler must disclose all facts and data given to him
Page 12 of 27

to review in preparing his opinions, even if he did not rely on them.
Opinion, p. 13 (d/e 240). Judge Cudmore also ordered Dish and
Sponsler to produce “any documents that contain facts or data
concerning Sponsler’s prior experiences (including his experience with
Dish) that he considered in formulating his opinions[.]” Opinion, p. 14
(d/e 240).
Magistrate Judge Cudmore rejected the persuasive authority cited
by Plaintiffs which held that an expert is deemed to have considered facts
or data “if the expert ‘has read or reviewed the privileged material before
or in connection with formulating his or her opinion.’” Opinion, p. 1516 (d/e 240). Judge Cudmore held that he would “following the Seventh
Circuit’s interpretation of Rule 26(a)(2) set forth in Fidelity National
Title Ins. Co. of New York, as modified by the 2010 Amendments to the
Rule.” Opinion, p. 16.
Plaintiffs object to Opinion 240 to the extent that Magistrate
Judge Cudmore limited the scope of “considered” to the materials the
expert admits he used in forming his opinions. Plaintiffs assert that they
Page 13 of 27

are entitled to all relevant facts and data on the subject matter covered
by the expert report that the expert acquired by reason of his prior
retentions. Plaintiffs ask the Court to hold that “considered” under Rule
26(a)(2)(B)(ii) “encompasses all aspects of an expert’s prior retentions
that objectively involve the subject matters covered by the expert’s
report—not just the aspects the expert will admit he used in forming the
opinions in his report.” Objection, p. 8.
Dish responds that Magistrate Judge Cudmore correctly interpreted
and applied Seventh Circuit law regarding the required scope of expert
disclosures. Defendant asserts that Sponsler is not required to turn over
every document from his prior retentions.
This case presents an interesting question. On the one hand, an
expert should not be able to limit the discoverability of facts and data
learned during a prior retention by simply stating that he did not
consider them when forming his current opinion. On the other hand, an
expert should not have to disclose all facts and data known to him
relating to any work he ever performed for a party.
Page 14 of 27

To the extent Magistrate Judge Cudmore interpreted “considered”
to include only the materials Sponsler admits he considered and the
materials Dish or its retailers specifically gave Sponsler to review, the
Court finds that conclusion clearly erroneous and contrary to law. Such
a reading of the term “considered” is far too narrow.
In Fidelity, 412 F.3d 745, the plaintiff’s expert conducted a
detailed investigation and prepared interview notes. The interview notes
(which the expert thought were destroyed but, in fact, had not been
destroyed) were not turned over because the plaintiff thought the notes
were irrelevant to the expert’s opinion. The Seventh Circuit rejected that
argument, noting that a “litigant is required to disclose to his opponent
any information ‘considered’ by the litigant’s testifying expert.” Fidelity,
412 F.3d at 751. The Court held:
A testifying expert must disclose and therefore retain
whatever materials are given to him to review in preparing his
testimony, even if in the end he does not rely on them in
formulating his expert opinion, because such materials often
contain effective ammunition for cross-examination.
[Citations.]

Page 15 of 27

But he is not required to retain every scrap of paper that
he created in the course of his preparation—only documents
that would be helpful to an understanding of his expert
testimony or that the opposing party might use in crossexamination. [Citation.]
Id.
Dish appears to read Fidelity as holding that a testifying expert
need only disclose the materials given to him to review in preparing his
testimony. At least one district court in the Seventh Circuit has read
Fidelity narrowly. See Allstate Ins. Co. v. Electrolux Home Products,
Inc., 840 F.Supp.2d 1072 (N.D. Ill. 2012) (holding that a party was not
required to disclose confidential documents provided to an expert in
another matter and which did not impact the expert’s opinion; the court
interpreted Fidelity as holding that “considered” applies to that
information an expert actively reviews and contemplates and then
chooses not to rely upon; an expert does not consider, rely upon, or list
confidential documents in the report where that information is simply
part of his background).

Page 16 of 27

However, the issue in Fidelity was whether an expert must preserve
materials given to him even if he did not rely on them in formulating his
opinion. The Seventh Circuit did not address the specific issue here:
whether “considered” includes facts and data given to a testifying expert
during a prior employment/retention4 where the prior matter involved
the same subject matter covered by the expert’s report.
Plaintiffs cite to several district court decisions that use “an
objective test that defines ‘considered’ as anything received, reviewed,
read, or authored by the expert, before or in connection with the forming
of his opinion, if the subject matter relates to the facts or opinions
expressed.” Euclid Chemical Co. v. Vector Corrosion Technologies, Inc.,
2007 WL 1560277, at * 4 (N.D. Ohio May 29, 2007) (footnotes

It appears that Sponsler’s prior retentions/employment by Dish were unrelated to
this litigation. Therefore, it does not appear that Rule 26(b)(4)(D) applies. See
Fed.R.Civ.P. 26(b)(4)(D) (a party may not generally discover facts known to an
expert employed only in anticipation of litigation or for trial preparation who is not
expected to testify as a witness at trial); but see also Sara Lee Corp. v. Kraft Food
Inc., 273 F.R.D. 416, 419-20 (N.D. Ill. 2011) (noting that where an expert serves
both as a non-testifying consultant and a testifying expert, “the broader discovery for
testifying experts applies to everything except ‘materials generated or considered
uniquely in the expert’s role as a consultant.’”) (emphasis and citations omitted).
4

Page 17 of 27

omitted) (citing cases). These courts generally find that an expert’s
assertion that he did not consider certain materials when forming his
opinion does not control. Id.; see also In re Commercial Money Ctr.,
Inc. Equip Lease Litigation, 248 F.R.D. 532, 534 (N.D. Ohio 2008)
(“[E]xperts have been deemed to have considered materials even when
they have testified, under oath, that they did not consider the materials
informing their opinions”). “[S]uch an assertion by an expert witness
could become too easy a dodge.” Simon Property Group L.P. v.
mySimon, Inc., 194 F.R.D. 644, 650 (S.D. Ind. June 20, 2000).
Several district courts also hold that when the subject matter of the
expert’s prior work relates to the facts and opinions the expert expresses
in his report, “courts should order disclosure when there is at least an
ambiguity as to whether the materials informed the expert’s opinion.”
Monsanto Co. v. Aventis Cropscience, N.V., 214 F.R.D. 545, 546-47
(E.D. Mo. 2002); see also Western Resources, Inc. v. Union Pacific R.
Co., 2002 WL 181494, at *10 (D. Kan. Jan. 31, 2002); but see United
States v. Bazaarvoice, Inc., 2013 WL 3784240, at *3 (N.D. Cal. July 18,
Page 18 of 27

2013) (noting that documentary information might have been relied on
“even if [it was] not technically reviewed by the expert in preparing his
report” but also noting that relying on memory is different than
reviewing facts or data); Employees Committed for Justice v. Eastman
Kodak Co., 251 F.R.D. 101, 105 (W.D. N.Y. 2008) (finding that the
results of an expert’s earlier consulting work did not need to be disclosed
because it was not sufficiently related to his expert work; however, the
methodologies used in the earlier work were discoverable because the
expert referenced the earlier methodologies in his report).
The Court finds these cases persuasive. A court should not solely
credit the subjective representations of the expert when determining what
the expert “considered.” While the manner of applying an objective test
is not entirely clear, the Court will order that Sponsler answer questions
in his deposition regarding his prior work for Dish and its retailers. To
the extent Plaintiffs believe the subject matter is sufficiently related to
the opinions Sponsler expressed in his report, Plaintiffs can submit
another request to the Court for production of documents relating to
Page 19 of 27

that earlier work. The Court can then decide whether Sponsler
“considered” the earlier facts, data, or assumptions when preparing his
expert report.
B.

Facts and Data Relating to Taylor’s 2008 Analyses Must
Be Turned Over
Plaintiffs also object to Opinion 240 to the extent it does not

require Dish turn over facts, data, and assumptions given to Taylor when
performing the 2008 Analyses of Dish’s call records.
Taylor supervised the team at PossibleNow that reviewed Plaintiffs’
analysis of the 2007-2010 Dish call records and prepared a report of
their analyses (the 2012 Analyses). During Plaintiffs’ deposition of
Taylor, Taylor testified he previously performed similar analyses of
Dish’s calling records.
In the Motion to Compel, Plaintiffs claimed that because Taylor
testified he relied on his prior analyses to inform his current analyses,
Plaintiffs were entitled to full information about the earlier analyses, the
results of those analyses, as well as the types of data, facts, and
assumptions Dish and its attorneys gave Taylor and PossibleNow to
Page 20 of 27

perform those analyses. Plaintiffs argued that Dish waived any privilege
over these documents by designating Taylor as a testifying expert.
Magistrate Judge Cudmore held that Dish was not required to
disclose the facts, data, and assumptions given to Taylor for his prior
analyses because (1) the prior analyses were distinct from the current
analyses because they involved completely different data sets; (2) Taylor
did not consider his prior analyses in formulating the new analysis; (3)
although Plaintiffs may be entitled to the prior analyses as crossexamination or impeachment material, they are not subject to disclosure
under Rule 26(a)(2)(B); and (4) the 11 documents already reviewed
remain privileged. Opinion at 14, 16.
These findings are clearly erroneous and contrary to law. Taylor’s
2008 Analyses and current analysis both considered call records for the
month of October 2007—which Plaintiffs claim include 20 million calls
during that month. Therefore, Magistrate Judge Cudmore’s factual
conclusion that the two analyses involved completely different data sets
was clearly erroneous.
Page 21 of 27

In addition, Taylor testified that he used his prior experience
analyzing Dish’s call records to inform his analyses in his expert report.
Taylor Dep. p. 34-35 (noting that during the earlier analyses he became
familiar with Dish’s “call record format, executed analysis based on that
call record format, provided tabular data with numbers, no data back
[sic] based on the analysis of that data” and had familiarity with the
layout of Dish’s calls); Dep. p. 54 (his earlier analyses assisted him
because he recognized the “call record format” and “it was easy to set up
the work flow to find the raw hits”); Dep. p. 101-102 (indicating his
familiarity with the codes from his prior work).
Magistrate Judge Cudmore also found that Rule 26(a)(2) does not
require an expert to disclose evidence of bias or all information that may
be relevant or useful on cross examination. However, as noted in
Fidelity, materials that an expert “considered,” even if he did not rely
upon them, may contain “effective ammunition for cross-examination.”
Fidelity, 412 F.3d at 751.

Page 22 of 27

Therefore, facts and data related to the 2008 Analyses must be
disclosed. See, e.g., Yeda Research, --- F.R.D. ---, 2013 WL 2995924, at
*20 (finding that the plaintiff waived the work product protection of its
expert’s former work as a consultant by designating him as an expert; the
subject matter of the earlier work directly related to the work as an
expert).
C.

Some of the 22 Privileged Documents Must be Disclosed
Plaintiffs also object to the withholding of 22 documents on Dish’s

privilege log. The Court has reviewed these documents.
Of the first 11 documents reviewed by Magistrate Judge Cudmore,
the following documents remain privileged because, although they are
communications between the party’s attorney and the witness or the
witness’s employer, they are not communications that (1) relate to
compensation; (2) identify facts or data that the expert considered in
forming his opinions; or (3) identify assumptions that the attorney
provided to the expert and that the expert relied on in forming his

Page 23 of 27

opinions (Fed.R.Civ.P. 26(b)(4)(C)): Nos. 921, 974, 975, 1251, 2396,
3424, 3448, 4447, 4452, and 4737.
The Court has also reviewed document EKDW 000477902, which
is a draft document purportedly prepared by Taylor in October 2010
about telemarketing compliance guidelines employed by Dish. The
document provides information about various compliance technology
tools employed by Dish, including scrubbing telephone numbers against
the National Do Not Call List and identifying Do Not Call telephone
numbers that qualify for the established business relationship exemption.
Taylor, in his 2012 Analyses, evaluated Dish’s calling records against
PossibleNow’s National Do Not Call Registry Historical Research
Database. See Taylor Report, p. 1. Taylor concluded that he was able to
exclude a large number of the calls Plaintiffs claim violated the law on
various grounds, including that the established business relationship
exception. Because document EKDW 000477902 involves the same
subject matter as that contained in Taylor’s report, the document must
be disclosed.
Page 24 of 27

The Court reviewed the additional 11 documents requested by
Plaintiffs and that Dish provided to the Court for an in camera
inspection. Three of those documents contain communications between
counsel and Guy Caldwell of PossibleNow but do not contain facts, data,
or assumptions as those terms are used in Rule 26(b)(4)(C). Therefore,
these documents need not be disclosed. See Nos. 3437, 4444, 4446; see
also GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 2011 WL
5439046, at *15 (S.D. N.Y. November 10, 2011) (finding no need to
consider the applicability of the attorney client privilege to a document
where Rule 26(b)(4)(C) permitted the withholding of communications
between an attorney and an expert witness except under three
circumstances and none of those circumstances applied).
Several of the documents relate to the 2008 Analyses, which this
Court has already held must be disclosed. Some of the documents also
contain facts or data counsel provided to Taylor for the 2008 Analyses.
Therefore, the following documents must be disclosed: Nos. 51, 83,
1669, 2515. Apparently document No. 3588 (2010 Do Not Call
Page 25 of 27

Certification Report) has already been produced to Plaintiffs. See
Plaintiffs’ Reply p. 6 (d/e 232). If not, the Court finds that the
document shall be produced.
The remaining documents (Nos. 78, 2454, 2455) involve emails to
and from Sponsler relating to his prior work for Dish. Until Plaintiffs
obtain more information about Sponsler’s prior work for Dish, the Court
cannot determine whether these documents should be disclosed.
V. CONCLUSION
Plaintiffs’ Objection to Opinion 240 (d/e 249) is GRANTED IN
PART. In this case, the term “considered” under Rule 26(a)(2)(B) may
encompass information Sponsler received during prior retentions if the
information relates to the subject matter in the expert report. Plaintiffs
may inquire of Sponsler about his prior retentions to determine whether
Dish must produce additional documents. The Court also finds that
Taylor “considered” the 2008 Analyses when conducting the 2012
Analyses. Therefore, Dish must produce all materials related to the 2008
analyses that identify facts, data, or assumptions Taylor used to perform
Page 26 of 27

the 2008 Analyses. As for the 22 documents Plaintiffs sought, the
following documents remain privileged: Nos. 921, 974, 975, 1251, 2396,
3424, 3448, 4447, 4452, 4737, 3437, 4444, and 4446. The following
documents must be disclosed: Nos. 51, 83, 1669, 2515, 3588, and
EKDW 000477902. The Court reserves ruling on the following
documents until after Sponsler’s additional deposition is completed: Nos.
78, 2454, 2455.
ENTER: October 9, 2013
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 27 of 27