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Bailey v. Board of Commissioners of Louisiana Stadium and Exposition District

United States District Court, E.D. Louisiana

October 23, 2019

SHELBY BAILEY
v.
BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM AND EXPOSITION DISTRICT ET AL.

         SECTION “G” (2)

          ORDER ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiff Shelby Bailey brought this lawsuit pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., based on alleged sightline obstructions from Bailey's wheelchair-accessible season ticket seats at the Mercedes-Benz Superdome. Record Doc. No. 1. Defendants' Motion to Quash Deposition or, in the Alternative, for Protective Order, Record Doc. No. 74, is before me. Plaintiff filed a timely opposition memorandum. Record Doc. No. 77. Defendants received leave to file a reply. Record Doc. Nos. 78, 80, 81. Defendants' motion seeks to quash the notice of deposition issued to Kevin McGuire or, alternatively, issuance of a protective order and/or modification of the notice of deposition to prohibit discovery of facts and opinions McGuire gleaned from his tenure as ADA consulting expert to defendants Board of Commissioners of the Louisiana Stadium and Exposition District (“LSED”) and non-defendant New Orleans Saints (“Saints”). For the following reasons, the motion is GRANTED IN PART AND DENIED IN PART.

         I. LEGAL STANDARD

         Subpoenas served on third parties to litigation “‘are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26.'” Garvin v. S. States Ins. Exchg. Co., 2007 WL 2463282, at *5 n.3 (N.D. W.Va. Aug. 28, 2007) (quoting In re Application of Time, Inc., 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff'd, 209 F.3d 719, 2000 WL 283199 (5th Cir. 2000)); see Nicholas v. Wyndham Int'l, Inc., 2003 WL 23198847, at *1-2 (D.V.I. Oct. 1, 2003) (the “clear majority position [is] that use of Rule 45 subpoenas constitutes discovery”); Mortg. Info. Servs. v. Kitchens, 210 F.R.D. 562, 566-67 (W.D. N.C. 2002) (“a Rule 45 subpoena does in fact constitute discovery”). The court has authority, even acting on its own, either to quash or to modify a subpoena that exceeds the strictures of either Rule. Fed.R.Civ.P. 26(b)(2)(c) and (c)(1)(A) and (D) and 45(d)(3). A court must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to an undue burden. Fed.R.Civ.P. 45(d)(3)(A)(iii) and (iv).

         Fed. R. Civ. P. 26(c)(1) governs motions for protective orders. The Rule provides in pertinent part:

A party or any person from whom discovery is sought may move for a protective order . . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . specifying terms, . . . for the . . . discovery.”

         The requirement “of a showing of good cause to support the issuance of a protective order indicates that ‘[t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.'” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y. 1994) (“Good cause must be established and not merely alleged.”).

         “A party may depose any person who has been identified as an expert whose opinions may be presented at trial.” Fed.R.Civ.P. 26(b)(4)(A). However, in the case of non-testifying consulting experts, such as McGuire,

[o]rdinarily, 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). A party seeking to show exceptional circumstances under Rule 26(b)(4)(D) carries a heavy burden Bromeland v. Posthumus, 2009 WL 10700074, at *1 (W.D. Tex. Jan. 29, 2009) (citing Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1142 n.13 (5th Cir.1980)).[1]

         The Advisory Committee Notes to the Federal Rules of Civil Procedure make clear 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.”Advisory Committee Notes to 1970 Amendment to Fed.R.Civ.P. 26 (quoted in Federal Civil Judicial Procedure and Rules at p. 138, Thomson Reuters 2019 rev. ed.). According to the official Notes, “[s]uch an expert should be treated as an ordinary witness.” Id.

         In a medical product liability lawsuit, Judge Milazzo of this court previously analyzed Rule 26(b)(4)(D)'s application to a discovery dispute over whether doctors who were designated by plaintiffs as non-testifying consulting experts were required to produce medical records to defendants when those doctors had also met with plaintiffs personally and performed medical examinations on them. In re Taxotere (Docetaxel) Prod. Liab. Litig., 2018 WL 5669019, at *4 (E.D. La. Nov. 1, 2018). The court held that Rule 26(b)(4)(D) requires courts to distinguish between a “percipient witness who happens to be an expert” and “an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide opinion testimony.” In re Taxotere, 2018 WL 5669019, at *3. The court held that non-testifying consulting experts are ordinary fact witnesses to the extent that they “acquire[] their information through percipient observations” of the events at issue in the case or become actors in the factual narrative of the case:

A person is not a consulting expert if he is “an actor with regard to the occurrences from which the tapestry of the lawsuit was woven, ” whose opinion . . . is premised on personal knowledge and observations . . . . An expert whose opinion testimony “arises not from his enlistment as an expert but, rather, from his ground-level ...

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