Solis v. El Tequila, LLC et al

Filing 153

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 129 Motion to Compel (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

THOMAS E. PEREZ, Secretary of
Labor,
Plaintiff,
v.
EL TEQUILA LLC, and
CARLOS AGUIRRE,
Defendants.

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Case No. 12-CV-588-JED-PJC

OPINION AND ORDER
Before the Court is the Plaintiff’s Motion to Compel Answers, Responses,
Documents and the Deposition of the Author of Exhibit 1 to Defendants’ Reply
to Defendants’ First Motion to Compel. [Dkt. No. 129]. The motion is
GRANTED.
BACKGROUND
This is an action by the Secretary of Labor (“SOL”) to enforce provisions of
the Fair Labor Standards Act (FLSA”). At the heart of the instant dispute is a
document entitled Department of Labor Basic Case Data (hereafter, “the Exhibit”),
which was attached as Exhibit 1 to Defendants’ Reply Brief in Support of
Defendants’ Motion to Compel Discovery. [Dkt. No. 72].
Our story begins with service of discovery requests by the SOL in January
2014. Interrogatory No. 5 asked:

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Please identify each and every expert used by Defendant for
consultation who is not expected to be called as a witness at trial
but whose work product forms a basis, either in whole or in part, of
the opinions of an expert who is to be called as a witness….
Request for Production No. 27 asked for every document that relates to
any expert retained by Defendants to “testify and/or consult with regard to this
litigation.” [Dkt. No. 129-1].
Defendant responded that it would abide by the Court’s Scheduling Order
regarding expert identification, and stated that there were no documents
responsive to Request No. 27. [Dkt. No. 141-1].
Meanwhile, in a separate discovery dispute {see Dkt. No. 62], Defendants
sought information about persons the SOL had interviewed in determining that
Defendants had violated the FLSA. On August 8, 2014, in their Reply in support
of the Motion to Compel, the Defendants attached the Exhibit and referred to it
as a document created by the SOL. The SOL did not recognize the Exhibit as a
document created by the Department of Labor; accordingly, on August 11, 2014,
the SOL inquired about the origin of the Exhibit. On August 20, 2014, the
parties met face-to-face to confer over outstanding discovery disputes. The SOL
states that during that meeting, Defense counsel informed the SOL that the
Exhibit was not created by the Department of Labor, but had been created by
Defendants’ “consulting expert.”

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The SOL now seeks discovery concerning the Exhibit, including who
authored it, underlying data concerning it, and the like. Defendants contend,
among other things, that this information is privileged.
APPLICABLE LEGAL PRINCIPLES
In a case, such as this, in which jurisdiction is based on a federal question,
the work-product doctrine is governed by a uniform standard embodied in Rule
26(b)(3). Expert work-product is governed by Rule 26(b)(4). Tenth Circuit law
interpreting the scope of discovery permissible under Fed. R. Civ. P. 26(b)(4),
recognizes four categories of experts with differing discovery limitations:
(1) Experts a party expects to use at trial. The opponent may learn by
interrogatories the names of these trial witnesses and the substance
of their testimony but further discovery concerning them can be
had only on motion and court order.
(2) Experts retained or specially employed in anticipation of litigation
or preparation for trial but not expected to be used at trial. Except
as provided in Fed.R.Civ.P. 35 for an examining physician, the facts
and opinions of experts in this category can be discovered only on
a showing of exceptional circumstances.
(3) Experts informally consulted in preparation for trial but not
retained. No discovery may be had of the names or views of experts
in this category.
(4) Experts whose information was not acquired in preparation for
trial. This class, which included both regular employees of a party
not specially employed on the case and also experts who were
actors or viewers of the occurrences that gave rise to suit, is not
included within Rule 26(b)(4) at all and facts and opinions they
have are freely discoverable as with any ordinary witness.

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Metris U.S.A., Inc. v. Faro Technologies, Inc., 2009 WL 2916811, *2 (D.Colo. Sept. 8,
2009) (citing Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622
F.2d 496, 500-01 (10th Cir. 1980)).
In order to establish limitations on the scope of discovery regarding an
expert, the party resisting discovery must establish which of the four categories
of experts applies. Ager, 622 F.2d at 502.
For example, Rule 26(b)(4)D) generally bars discovery as to consulting
experts who have been specially retained, but who are not expected to testify at
trial. Such discovery is ordinarily precluded absent a showing of exceptional
circumstances.
Ordinarily, a party may not, by interrogatories or deposition,
discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of
litigation or to prepare for trial and who is not expected to be
called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.
Fed. R. Civ. P. 26(b)(4)(D).1

While the Rule appears, on its face, to preclude discovery only as to “facts
known and opinions held” by a consulting expert, the Tenth Circuit has
interpreted the Rule to include the identity of a consulting, non-testifying expert.
Ager, 622 F.2d at 503. This is now the majority view. Kuster v. Harner, 109
F.R.D. 372, 374 (D. Minn. 1986) (It is clear that the Tenth Circuit’s view has
become the prevailing one since Ager). See, 8A Charles Alan Wright, Arthur R.
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Thus, to establish that this limitation applies, the party resisting discovery
must show that the expert has been retained by that party, in anticipation of
litigation or to prepare for trial, but is not expected to testify at trial. This may
be established by affidavit or even by an in camera submission to the Court.
Whether a party is asserting work-product protection under Rule 26(b)(3)
or expert work-product protection under Rule 26(b)(4), the party resisting
discovery has the burden of showing that a privilege or work-product protection
applies. Work-product protection requires a showing of the following elements:
1) Documents or tangible things;
2) Prepared in anticipation of litigation or for trial;
3) By or for another party or that party’s representative.
Rule 26(b)(3)(A).
DISCUSSION
Insofar as Plaintiff’s January 2014 Interrogatory No. 5 sought information
about Defendants’ consulting, non-testifying experts, Defendants’ discovery
response was appropriate. Generally, this Court defers discovery as to testifying
experts until the deadlines set forth in the trial judge’s Scheduling Order. Rule
26(b)(4)(D) precludes discovery regarding a specially retained, non-testifying,
consulting expert – absent a showing of unusual circumstances.
Did the disclosure of the Exhibit alter this framework?
Miller & Richard L. Marcus, Federal Practice and Procedure § 2032 (3d ed.
2010).
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Once the Exhibit was disclosed to the SOL, Plaintiff had a natural desire to
learn where the document came from. Defendants have resisted SOL’s attempts
to discover the origin of the Exhibit, stating that disclosure of the document was
an “inadvertent error,” and that Plaintiff is seeking a “tactical advantage” by
pursuing information about the Exhibit. [Dkt. No. 141, at 3]. Defendants
contend that communication between their counsel and a consulting expert is
privileged and protected by the work-product doctrine. [Id., at 4]. Defendants
further deny that the privilege has been waived. [Id., at 5]. Defendants also
contend, without explanation, that the issue of discovery concerning the Exhibit
has not been properly presented to the Court. [Id., at 6].
First, it is clear that Defendants’ disclosure of the Exhibit was not
inadvertent. Defendants fully intended to disclose the Exhibit. It was attached
as the only exhibit to Defendants’ Reply in support of a Motion to Compel and
was specifically referred to in their brief. [Dkt. No. 72]. While counsel may
have erred in believing that the Exhibit was created by the Department of Labor,
there is no question that disclosure of the document was intentional.
Second, Defendants have offered no basis for the Court to find that the
document is privileged or protected. Defendants have the burden of
establishing their claim of protection.
Questions surrounding claims of work-product protection generally
involve critical factual issues as to whether the materials at issue
were prepared at the direction of a party or the party's
representative “in anticipation of litigation.” Fed.R.Civ.P. 26(b)(3)(A).
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The party asserting privilege or protection bears the burden of
showing that the protection applies. Barclaysamerican Corp. v. Kane,
746 F.2d 653, 656 (10th Cir. 1984).
Burke v. Glanz, 2013 WL 3994634, *2 (N.D.Okla. Aug. 5, 2013).
The determination of the status of the expert rests, in the first
instance, with the party resisting discovery. Should the expert be
considered informally consulted, that categorization should be
provided in response. The propounding party should then be
provided the opportunity of requesting a determination of the
expert’s status based on an in camera review by the court.
Ager, 622 F.2d at 502.
Defense counsel cannot make this determination unilaterally; there must
be some record available for the Court’s review.
Because of the often fact-dependant nature of the question of
whether an expert was consulted in anticipation of litigation or
rather in the regular course of business, counsel is not at liberty to
make this determination without allowing review by the court.
Bergeson v. Dilworth, 749 F.Supp. 1555, 1565 (D.Kan. 1990) (citing Ager).
Here, Defendants have resisted Plaintiff’s discovery as to the Exhibit, by
bandying about the terms “consultant” and “consulting expert.” However,
bandying does not establish a genuine basis for work-product protection. More
is required. The burden is on the party claiming privilege or work-product
protection to state “specifically and establish to the court’s satisfaction the facts
supporting each of the requisite elements.” Edna Selan Epstein, The AttorneyClient Privilege and the Work-Product Doctrine 649 (4th ed.).

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Defendants have not met that burden. They have offered no evidentiary
support for their claim that the Exhibit is the work of a consulting expert who
was specially retained, but who is not expected to testify. Thus, the Court has
no basis upon which to conclude that information concerning the Exhibit is
protected from discovery.
Finally, even if Defendants had established a basis for work-product
protection, that protection was waived by intentional and prolonged disclosure.
Defendants have made no showing that they attempted to keep the document
confidential – it was not marked “Confidential” or “Work-Product Protected.”
There is no record evidence that the Exhibit was ever listed on a privilege log.
Furthermore, following disclosure, Defense counsel made no attempt from
August 8 until September 23, 2014, to remove the Exhibit from the public
record. [Dkt. Nos. 72 &108]. U.S. v. MIT, 129 F.3d 681, 687 (1st. Cir. 1997)
(prevailing rule is that disclosure of work product to an adversary, real or
potential, forfeits protection of ordinary work product.).
ACCORDINGLY, Plaintiff’s Motion to Compel is GRANTED.
DATED this 10th day of December 2014.

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