United States District Court, E.D. Louisiana
ORDER ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
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.
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).
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 . . .
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
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.
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
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.
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 ...