Critical Nurse Staffing v. Four Corners Health Care
Filing
134
MEMORANDUM DECISION AND ORDER denying 111 Motion to Strike - Plaintiff's expert, Ms. Francis, is ORDERED to comply with the requirements of Federal Rule 26(a)(2)(C); granting 112 Motion for Protective Order with respect to Financial Data Spreadsheet. Signed by Magistrate Judge Brooke C. Wells on 5/10/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CRITICAL NURSE STAFFING,
v.
MEMORANDUM DECISION AND ORDER
DENYING MOTION TO STRIKE AND
GRANTING MOTION FOR ENTRY OF
PROTECTIVE ORDER
FOUR CORNERS HEALTH CARE, et al.,
Case No. 2:13-cv-646 TS
Plaintiff,
Defendants.
District Judge Ted Stewart
Magistrate Judge Brooke Wells
Before the Court are two motions. 1 Defendants, Four Corners Health Care corporation et
al. (Four Corners), seek an order from the court striking Plaintiff’s damages claim, or in the
alternative, request an order requiring Plaintiff’s damages expert to provide a report in
compliance with Federal Rule 26 and to extend the deadline to provide a rebuttal report. 2
Plaintiff Critical Nurse Staffing (CNS) moves the court for the entry of a protective order with
respect to the “Financial Data” spreadsheet provided to Defendants with CNS’ expert witness
disclosure. 3 The court addresses each of these motions in turn.
This case involves in-home health care and the parties are competitors in that industry.
Plaintiff’s allegations in this case center on claims of conspiracy, contractual disputes and
1
This matter is referred to the undersigned in accordance with 28 U.S.C. § 636(b)(1)(A). The Court has carefully
reviewed th written memoranda submitted by the parties and based upon Local Rule 7-1(f) has concluded that oral
argument is not necessary and will determine the motions on the basis of the written memoranda.
2
Docket no. 111.
3
Docket no. 112.
violations of Title 15 U.S.C. §1125. 4 Currently, the parties are locked into what appears to be a
series of never-ending discovery disputes. 5
I.
Defendants’ Motion to Strike or in the Alternative Require Additional
Documentation and Report
“Defendants seek an order from this court, striking plaintiffs claim for damages. If that
remedy is not given, defendants seek an order requiring the plaintiff’s damages expert to provide
a report in compliance with FRCP 26 and to extend defendants’ deadline to provide rebuttal
experts.” 6 Defendants argue CNS failed to comply with the requirements of Rule 26(a)(1) and
subsequently failed to provide answers to interrogatories and requests for production of
documents. Plaintiff has failed to provide an expert report, and because CNS “refused to ‘play
fair’ in this litigation,” Plaintiff should be “prohibited from introducing evidence of damages at
trial.” 7 Plaintiff’s expert is Sarah Francis, who is the Chief Financial Officer for Plaintiff.
The Court is not persuaded by Defendants arguments. The Court fails to find a basis to
strike Plaintiff’s claim for damages. The Court does not believe Plaintiff to be in violation of the
undersigned’s prior orders.
In addition, as noted in decisions from the Tenth Circuit, 8 this district 9 and the Eastern
District of Washington, 10 there are certain circumstances when an expert is not required to file a
4
Complaint p. 2-7, docket no. 2.
5
See e.g., docket nos. 93, 105, 109, 11, 112 and 132..
6
Mtn. p. 1, docket no. 111.
7
Mtn. p. 5.
8
Watson v. U.S., 485 F.3d 1100 (10th Cir. 2007).
9
Adams v. Gateway, Inc., 2006 WL 644848 (D.Utah March 10, 2006).
10
Navajo Nation v. Norris, 189 F.R.D. 610, 613 (E.D.Wash 1999).
2
report. These “include individuals who are employed by a party and do not regularly give expert
testimony.” 11 Rule 26(a)(2)(B) of the Federal Rules of Civil procedure provides in relevant part:
Unless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report—prepared and signed by the witness—if the
witness is one retained or specially employed to provide expert testimony in the
case or one whose duties as the party’s employee regularly involve giving expert
testimony.” 12
In 2010, an amendment to Rule 26(a)(2) was adopted that added a new subsection to Rule
26. Subsection (C) further illustrates the intent of the rule makers to allow some experts to not
submit a report. Subsection (C) provides:
Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or
ordered by the court, if the witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected
to testify. 13
The Advisory Committee Notes relating to this new subsection provide:
Rule 26(a)(2)(C) is added to mandate summary disclosures of the opinions to be
offered by expert witnesses who are not required to provide reports under Rule
26(A)(2)(B) and of the facts supporting those opinions. This disclosure is
considerably less extensive than the report required by Rule 26(A)(2)(B). Courts
must take care against requiring undue detail, keeping in mind that these
witnesses have not been specially retained and may not be as responsive to
counsel as those who have.
This amendment resolves a tension that has sometimes prompted courts to require
reports under Rule 26(a)(2)(B) even from witnesses exempted form the report
requirement. 14
11
Watson, 485 F.3d at 1107.
12
Fed.R.Civ.P. 26(a)(2)(B) (2016).
13
Fed.R.Civ.P. 26(a)(2)(C).
14
Notes of Advisor Committee on 2010 Amendments to Rules.
3
The plain language of the Rule 26, case law from this district and the Tenth Circuit, and
the Advisory Committee Notes all support a distinction between experts that must provide
reports and those that are exempt. Defendants suggest that Ms. Francis does not meet the
exemption requirements under Rule 26 because she has analyzed the data and formed an opinion
twice previously, has been designated as an expert twice before and is designated as an expert in
this case. These facts fall far short of leading the undersigned to conclude that Ms. Francis’
duties as an employee of Plaintiff regularly involve giving expert testimony. Ms. Francis’
affidavit states that she does not provide expert witness testimony on a regular or recurring basis
and she has yet to provide expert testimony in the other cases in which she has been involved as
a named expert. 15 There is nothing offered by Defendants to refute her affidavit. As long as Ms.
Francis satisfies the requirements found in 26(a)(2)(C) there is no need for her to provide a
written report.
Finally, Defendants cited authority, Minnesota Mining and Manufacturing Company v.
Signtech USA, Ltd., 16 does little to advance their position. This case was decided prior to the
2010 Amendments and a subsequent decision from that same district concluded the Signtech
court reached an incorrect decision. 17
The Court therefore will deny Defendants’ alternative request to require additional
documentation and an expert report. What remains of Defendants motion is whether or not an
extension of time should be granted for Defendants to provide rebuttal reports. The Court is not
convinced that an extension is warranted. The current expert discovery deadline is set to close
15
Affidavit of Sarah Francis, p. 1, docket no. 123-1.
16
177 FRD 459 (Minn. 1998).
17
Duluth Lighthouse v. C.G. Bretting Manufacturing Co., Inc., 199 F.R.D 320, 324 (Minn. 2000).
4
on July 29, 2016, which should provide adequate time for Defendants’’ expert(s) to provide a
rebuttal report.
II.
Plaintiff’s Motion for Entry of a Protective Order
In this motion the parties’ dispute centers on the designation of financial data
spreadsheets that were provided to Defendants with Plaintiff’s Expert Witness Disclosure.
Plaintiff asserts that the designation should remain “attorney eyes only.” In contrast, Defendants
argue the designation should be “merely ‘confidential’ not ‘attorney eyes only.’” 18
Information in this case is protected by the Court’s Standard Protective Order. 19 The
Standard Protective Order provides that the designation CONFIDENTIAL – ATTORNEYS
EYES ONLY may only be used for the following types of past, current or future protected
information: 20
(1) sensitive technical information, including current research, development and
manufacturing information and patent prosecution information, (2) sensitive
business information, including highly sensitive financial or marketing
information and the identity of suppliers, distributors and potential or actual
customers, (3) competitive technical information, including technical analyses or
comparisons of competitor’s products, (4) competitive business information,
including non-public financial or marketing analyses or comparisons of
competitor’s products and strategic product planning, or (5) any other
PROTECTED INFORMATION the disclosure of which to non-qualified people
subject to this Standard Protective Order the producing party reasonably and in
good faith believes would likely cause harm. 21
18
Op. p. 1, docket no. 119.
19
Local Rule 26-2 provides for the entry of the Court’s Standard Protective Order in civil cases so that discovery
may commence without unnecessary delay. It applies in every case involving the disclosure of information
designated as confidential. “Unless the court enters a different protective order, pursuant to stipulation or motion,
the Standard Protective Order available on the Forms page of the court’s website . . . shall govern and discovery
under the Standard Protective Order shall proceed.” DUCivR 26-2 (2015).
20
The Standard Protective Order defines PROTECTED INFORMATION as “confidential or proprietary technical,
scientific, financial, business, health, or medical info1mation designated as such by the producing party.” Standard
Protective Order p. 2, attached as exhibit 3 to Plaintiff’s motion. Docket no. 112-3. The Standard Protective Order
may also be found on the Court’s website at http://www.utd.uscourts.gov under the forms section. For ease of
reading the Court does not capitalize protected information in its decision.
21
Standard Protective Order p.2.
5
Information that has been designated as CONFIDENTIAL – ATTORNEYS EYES ONLY “shall
be disclosed by the receiving party only to Qualified Recipients.” 22 Qualified Recipients include
inter alia, outside counsel for a party as well as the “partners, associates, secretaries, paralegal
assistants, and employees of such counsel to the extent reasonably necessary to render
professional services in the action;” 23 Court officials; and any outside Technical Advisor 24
“employed by the outside counsel of record, . . .” 25
The term CONFIDENTIAL INFORMATION means all protected information that is not
designated as CONFIDENTIAL – ATTORNEYS EYES ONLY. 26 Information that is
designated as CONFIDENTIAL INFORMATION may be shared with a wider range of
individuals including in-house counsel for a party to an action, the insurer of a party to litigation
and employees of the parties. 27 Thus, the question before the Court is whether the financial data
spreadsheets should be designated to allow for broader distribution?
Plaintiff argues the financial data spreadsheets constitute “highly sensitive financial or
marketing information” that would allow Defendants a “comparison of a competitor’s
products.” 28 Plaintiff further argues that these spreadsheets represent “competitive business
information” and thus should be protected. In opposition Defendants challenge the type of
information arguing that it cannot be labeled as competitive business information. Defendants
22
Id. at p. 7.
23
Id. at p. 8.
24
“The term TECHNICAL ADVISOR shall refer to any person who is not a party to this action and/or not presently
employed by the receiving party or a company affiliated through common ownership, who has been designated by
the receiving party to receive another party’s PROTECTED INFORMATION, including CONFIDENTIAL
INFORMATION – ATTORNEYS EYES ONLY, and CONFIDENTIAL INFORMATION.” Standard Protective
Order p. 3.
25
Standard Protective Order p. 8.
26
Standard Protective Order p. 2.
27
See id. at p. 9.
28
Mtn p. 5, docket no. 112.
6
also argue that the information in the spreadsheets need not be hidden because it was “readily
available in the community and freely discussed at the flea market.” 29
The Court has reviewed the spreadsheets and finds that the information contained in them
is competitive business information. The Court, therefore, rejects Defendants’ arguments that
they should be designated as CONFIDENTIAL INFORMATION. Further, it appears that
Defendants either have, or are in the process of obtaining an expert who would be characterized
as a Technical Advisor who may view the spreadsheets. The Court does not believe that
Defendants need to share the information with their employees to verify Plaintiff’s calculations.
Such work is better left for an expert. The Court will grant Plaintiff’s Motion for Entry of a
Protective Order regarding the financial data spreadsheets.
29
Op. p. 5, docket no. 119.
7
CONCLUSION AND ORDER
IT IS HEREBY ORDERED that Defendants’ Motion to Strike Damages or in the
Alternative Provide Additional Documentation and An Expert Report and to Extend Defendants’
Disclosure Deadline is DENIED. Plaintiff’s expert, Ms. Francis, is ORDERED to comply with
the requirements of Federal Rule 26(a)(2)(C).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Entry of a Protective Order with
respect to Financial Data Spreadsheet is GRANTED.
Expenses and attorney fees are awarded are not awarded for either motion as substantial
justification existed for the positions taken by the parties raised in their defense of motions.
IT IS SO ORDERED.
DATED this 10 May 2016.
Brooke C. Wells
United States Magistrate Judge
8
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