Frank et al v. Walker et al

Filing 146

ORDER signed by Judge Lynn Adelman on 9/27/13 denying 136 Motion to Compel. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al.,
Plaintiffs,
v.

Case No. 11-CV-01128

GOVERNOR SCOTT WALKER, et al.,
Defendants.

DECISION AND ORDER
Before me is defendants’ motion to compel plaintiffs to produce the names of the
individuals who participated in a confidential survey analyzed by plaintiffs’ expert, Professor
Matt Barreto. Defendants claim that plaintiffs are required to disclose the identities of the
survey participants under Fed. R. Civ. P. 26(a)(2)(B)(ii).
Rule 26(a)(2)(B)(ii) requires an expert report to include “the facts or data considered
by the witness in forming [his opinions].” The purpose of this rule is to ensure that the
opposing party has access to any “documents that would be helpful to an understanding
of the expert testimony.” Fid. Nat’l Title Ins. Co. of New York v. Intercounty Nat’l Title Ins.
Co., 412 F.3d 745, 751 (7th Cir. 2005). An expert “considers” data if he actively reviews
and contemplates it, even if he ultimately chooses not to rely on it. Id. According to
plaintiffs, Barreto was never told the names of the survey participants. He only received
redacted survey responses that listed a participant’s race and answers to questions about
what identification documents he or she possessed. These redacted survey responses
have already been provided to defendants. Since Barreto did not consider the names of
the survey participants when conducting his analysis, I find that plaintiffs were not required

to disclose them. The participants’ names will not help defendants understand Barreto’s
testimony.
THEREFORE, IT IS ORDERED that defendants’ expedited motion to compel the
production of complete and un-redacted survey data (Docket #136) is DENIED.
Dated at Milwaukee, Wisconsin, this 27th day of September, 2013.

s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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