Dallas v. Marion Power Shovel Co.

126 F.R.D. 539, 14 Fed. R. Serv. 3d 1053, 1989 U.S. Dist. LEXIS 7510, 1989 WL 73940
CourtDistrict Court, S.D. Illinois
DecidedJune 27, 1989
DocketCiv. No. 87-4357
StatusPublished
Cited by4 cases

This text of 126 F.R.D. 539 (Dallas v. Marion Power Shovel Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dallas v. Marion Power Shovel Co., 126 F.R.D. 539, 14 Fed. R. Serv. 3d 1053, 1989 U.S. Dist. LEXIS 7510, 1989 WL 73940 (S.D. Ill. 1989).

Opinion

MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

This matter is before the Court on the plaintiff’s motion to compel answers to deposition questions propounded to an employee of the defendant Dresser Industries, Inc.

As part of the discovery process, the defendant disclosed that Gary H. Beckley, vice-president of marketing and engineering for the Marion division of Dresser Industries, had the requisite knowledge to answer the plaintiff’s interrogatories. During Beckley’s deposition on March 23, 1989, the plaintiff learned that Beckley has a mechanical engineering degree from the Illinois Institute of Technology and has had extensive experience in designing equipment.

The plaintiff’s attorney asked Beckley several questions during his deposition that would oblige him to base his answers on his engineering knowledge and his knowledge of what the defendant was doing with respect to the design of its product. The defendant’s counsel refused to allow Beckley to answer any questions that would require him to render an opinion or to call [540]*540upon his experience as an engineer. These disputed questions were certified for ruling by the Court, and the plaintiff subsequently filed a motion to compel the defendant to produce Beckley for continuation of the deposition as to the certified questions.

The defendant contends that Beckley should not be compelled to answer the disputed questions because they call for Beckley’s expert opinion, and he was not disclosed as an expert witness by the defendant. The defendant states that Beckley has never been asked to review this case and therefore is not prepared to offer opinion testimony that would be considered expert in nature. Essentially, the defendant complains that the plaintiff is attempting to build his case on Beckley’s expert testimony wrongfully compelled from the defense.

Under the general rules of discovery, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action____” Fed.R.Civ.P. 26(b)(1). Furthermore, “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Although the Federal Rules place more stringent limitations upon discovery of facts and opinions held by experts, those limitations are inapplicable to this case. The portion of Rule 26 applicable to experts states that “[discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision .(b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained----” Fed.R.Civ.P. 26(b)(4) (emphasis added). The key requirement is that the expert’s facts and opinions must have been prepared for litigation purposes.

The defendant has made no showing that Beckley’s opinions were developed in anticipation of trial. The defendant’s memorandum acknowledges that Beckley has never been asked to review this case. Although Beckley may have expert knowledge within the field of engineering, the defendant did not procure that knowledge for litigation purposes. Therefore, the plaintiff is not attempting to discover expert opinions that have been acquired as part of trial preparation. Rather, the plaintiff is seeking to discover Beckley’s professional opinion based upon his general engineering knowledge and his knowledge, as vice-president of engineering, of the defendant’s actions regarding its product.

Case law and commentary to the Federal Rules of Civil Procedure support the plaintiff’s argument that such information is discoverable. The Advisory Committee’s Note states that Rule 26(b)(4) “does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” Advisory Committee Note, 48 F.R.D. 487, 503. The Committee’s Note further indicates that “an expert who is simply a general employee of the party [but] not specially employed on the case” is not an expert subject to the protective provisions of Rule 26(b)(4). Id. at 504.

This view is shared by several commentators. Wright and Miller describe Rule 26(b)(4) as dividing experts into four classes, with separate rules for each:

(1) Experts a party expects to use at trial. [Rule 26(b)(4)(A)] ...
(2) Experts retained or specially employed in anticipation of litigation or preparation for trial but not expected to be used at trial. [Rule 26(b)(4)(B) ]
(3) Experts informally consulted in preparation for trial but not retained ...
(4) Experts whose information was not acquired in preparation for trial.

8 C. Wright & A. Miller, Federal Practice and Procedure § 2029, at 250 (1970). The fourth category, which would include employees of a party not specially employed for purposes of litigation, as well as experts who were actors or viewers of the occurrences that gave rise to the suit, “is not included within Rule 26(b)(4) at all and facts and opinions they have are freely [541]*541discoverable as with any ordinary witness.” Id. at 250-51.

' Another commentator has noted that some employees may be hired specifically to assist in litigation and are thus non-discoverable. On the other hand, “[a] regularly employed expert may acquire information and form opinions not in anticipation of litigation or for trial and to that extent he is fully discoverable.” Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U.Ill.L.F. 895, 942.

Several federal courts have specifically addressed the issue, holding that information held by such “in-house” experts, including the expert’s opinion, is discoverable under the general provisions of Rule 26(b)(1) and is not subject to the protective limitations of Rule 26(b)(4). Virginia Elec. and Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 406-08 (E.D.Va.1975); Kansas-Nebraska Natural Gas v. Marathon Oil Co., 109 F.R.D. 12, 15-16, (D.Neb.1985).

In Virginia Elec. and Power Co., the court ruled that documents produced by regular employees of the defendant were not entitled to qualified immunity from discovery under Rule 26(b)(4) simply because the employees are experts and the documents contained their expert opinions, findings, and factual analysis. The court held that an “in-house expert” is to be treated, for purposes of discovery, as an ordinary witness. The court stated that “[t]his view does not in any way prohibit any expert, in-house or out, from giving an opinion in testimony at trial. It merely opens up that opinion, based on facts gained in the course of his employment to discovery under Rule 26(b)(1).” 68 F.R.D. at 408.

Similarly, in Kansas-Nebraska Natural Gas,

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Bluebook (online)
126 F.R.D. 539, 14 Fed. R. Serv. 3d 1053, 1989 U.S. Dist. LEXIS 7510, 1989 WL 73940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dallas-v-marion-power-shovel-co-ilsd-1989.