Anwar et al v. Fairfield Greenwich Limited et al

Filing 1154

DISCOVERY ORDER: The Standard Chartered parties have asked me to resolve yet another dispute concerning expert discovery. Accordingly, in the absence of any specific limitations applicable to expert discovery, I agree with the Plaintiffs that Rule 26(b)(1) governs. The Defendants' objections that the Plaintiffs' requests are beyond the permissible scope of expert discovery therefore are overruled. (Signed by Magistrate Judge Frank Maas on 6/19/2013) Copies Sent By Chambers to Hon. Victor Marrero, United States District Judge. Filed In Associated Cases: 1:09-cv-00118-VM-FM et al.(djc) Modified on 6/20/2013 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELECfRONICALLY FILED 11
DOC#:
DATE FI-L-ED-:---=-(;'-2-o-'U)-ls-/i

--_JJ

PASHA S. ANWAR, et ill,
Plaintiffs,

DISCOVERY ORDER

-against­
09 eiv. 118 (VM) (FM)
FAIRFIELD

GREE~WICH

LTD, et

Defendants.
This Document Relates to the
Standard Chartered Cases

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FRANK MAAS, United States Magistrate Judge.

The Standard Chartered parties have asked me to resolve yct another
dispute concerning e)(pert discovery. On April 5, 2013, the Plaintiffs served subpoenas
under Rule 45(c)(2) of the Federal Rules of Civil Procedure seeking the production of
documents by the Defendants' two e)(pert witnesses. The Defendants raised a number of
objections to those subpoenas and have produced nothing in response. On May 1, 2013,
the Defendants served e)(pert discovery requests of their own, which the Plaintiffs have
refused to answer, arguing that they are improper because they were submitted in the
fonn of document requests under Rule 34 of the Federal Rules, rather than SUbpoenas.
During a telephone conference with the Court on June 14, the Plaintiffs e)(plained that
they were relying on this procedural point for fear that the Defendants were attempting to
obtain additional factual discovery from the Plaintiffs (rather than their e)(perts) after the
time for fact discovery elapsed. To allay their concerns, I directed that the Defendants'
Rule 34 requests be treated as Rule 45 subpoenas.
Instead of parsing counsels' objections one by one, it seems more efficient
to address the central issue from which most, if not all, of their present disputes flow.
That issue concerns the scope of e)(pert discovery pennissible under the Federal Rules.
The Defendants contend that all e)(pert discovery is circumscribed by Rule 26(a)(2)(B),
which delineates the categories of infonnation that must be disclosed in an e)(pert's
report. The Plaintiffs argue, on the other hand, that the Defendants' proposed standard is
too naITOW and that the proper scope of e)(pert discovery must be detennined under Rule
26(b)( 1), which pelmits discovery of all nonprivileged infonnation relevant to any party's
claim or defense and, upon a showing of "good cause," any infonnation relevant to the
subject matter of the action.

As a practical matter, this dispute is probably oflittle consequence. No
matter how broad the permissible scope of discovery may be, an expert is unlikely to be
able to respond to inquiries that go far beyond the four corners of his report. The seven­
hour presumptive limit on an expert witness' deposition also serves as a brake on a
party's ability to pose questions concerning marginally relevant matters.
To the extent that a ruling will make a difference, my analysis is as follows.
Under the Federal Rules, which are to be accorded their plain meaning, Pavelic &
LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989), there is no distinction
between the seope of expert discovery and any other discovery. Although Rule
26(a)(2)(B) admittedly sets forth certain mandatory "disclosure" requirements for experts,
the Rule says nothing about the breadth of expert discovery. Indeed, the "scope and
limits" of discovery is discussed in an entirely separate section Rule 26(b). Nowhere in
Rule 26 is there any suggestion that the scope of expert discovery is subject to a standard
narrower than the one set forth in Rule 26(b)(1). Accordingly, in the absence of any
specific limitations applicable to expert discovery, I agree with the Plaintiffs that Rule
26(b)(1) governs. The Defendants' objections that the Plaintiffs' requests are beyond the
permissible scope of expert discovery therefore are overruled.
SO ORDERED.
Dated:

New York, New York
June 19, 2013

United States Magistrate Judge

Copies to:

Hon. Victor Marrero
United States District Judge
All counsel (via ECF)

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