Blue Tee Corp. v. Xtra Intermodal, Inc. et al

Filing 89

ORDER re 88 Discovery Dispute Conference and 83 Discovery Dispute Conference. Signed by Magistrate Judge Donald G. Wilkerson on 9/30/14. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BLUE TEE CORP. and GOLD FIELD)
)
MINING, LLC,
)
)
Plaintiffs,
)
)
v.
)
XTRA INTERMODAL, INC, et al., X-L-CO.,)
INC., XTRA CORPORATION, XTRA LLC,)
)
and XTRA COMPANIES, INC.,
)
)
Defendants.

Case No. 3:13-cv-830-DRH-DGW

ORDER
WILKERSON, Magistrate Judge:
On August 25, 2014, an in person discovery dispute hearing was held in which Plaintiffs
were represented by Shannon L. Haney and Defendants were represented by Christopher J.
Schmidt and Erin L. Brooks. The same attorneys also appeared for a telephonic discovery dispute
conference held on September 24, 2014. For the reasons set forth at the hearing/conference and
below, the following is hereby ORDERED:
1. Defendants are GRANTED leave to depose Mr. Alladien, the CFO of Blue Tee, as a corporate
representative. The deposition shall take place in New York City or by video-conference. The
deposition may cover to Blue Tee’s corporate structure and its relationship/agreements with Gold
Fields. The parties shall confer as to the type of financial information Mr. Alladien will be
required to testify to; to the extent that the parties cannot agree, them may contact chambers for a
teleconference on the matter.
2. Plaintiffs shall produce relevant insurance agreements and buy-back policies as discussed at

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the hearing.
3.

Plaintiffs object to a subpoena to produce documents issued by Defendants to Terrance

Gileo Faye, Plaintiff’s corporate representative and in house counsel, seeking deposition
transcripts and affidavits/declarations of Ms. Faye in other cases involving Plaintiffs. Plaintiffs
primarily object on relevance grounds, arguing that the testimony in unrelated cases is irrelevant to
the claims and defenses in this case. Plaintiffs also argue that the documents are governed by
attorney-client privilege. Defendants argue that the testimony is relevant because it concerns
Plaintiffs’ clean-up of another zinc site in Oklahoma, because it concerns insurance coverage as to
the two Plaintiffs, and because it would concern Plaintiffs’ general procedures with respect to sites
like the one at issue in this case.
The Court finds that the transcripts and related depositions are relevant, if only marginally.
The Court further finds that sworn statements and depositions made by Ms. Faye in her capacity as
a corporate representative are not protected by the attorney-client privilege. However, the
subpoena is limited to the deposition transcripts and affidavits/declarations made by Ms. Faye in
three cases dated 2010, 2005, and 2002. While the parties did not provide the Court with the
caption of these cases, they are the three cases that Ms. Faye testified about in her deposition in this
matter.

Accordingly, Ms. Faye is ORDERED to produce such deposition transcripts and

affidavits/declarations by October 6, 2014.
4.

Defendants also seek additional information related to an expert disclosed by Plaintiff,

ENTACT. In their expert disclosures, Plaintiffs identified this entity as an expert who is not
retained or specially employed and therefore an expert that does not need to provide an expert
report. Defendants argue, however, that the disclosure provided by Plaintiffs fails to comply with
Federal Rule of Civil Procedure 26(a)(2)(C)(ii): the disclosure does not provide “a summary of the
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facts and opinions to which the witness is expected to testify.” Instead the disclosure lists a
number of reports generated by ENTACT that date from 2002 and that cumulatively total
thousands of pages. The Court finds that the disclosure is insufficient because there is no
summary of facts or opinions but rather a mere list of documents relied on by this expert in
developing its opinions.

Plaintiffs are accordingly ORDERED to supplement their expert

disclosures by October 6, 2014 to include a summary of the facts and opinions to which ENTACT
will testify.
5.

Finally, pursuant to an agreement of the parties, the settlement conference in this matter is

RESET to November 18, 2014.

IT IS SO ORDERED.
DATED: September 30, 2014

DONALD G. WILKERSON
United States Magistrate Judge

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