# In the United States Court of Federal Claims

No. 1 7

- 855C

(Filed: October 1 , 201 9 )

********************************** HAHNENKAMM, LLC

,

Plaintiff,

v.

UNITED STATES,

Defendant.

********************************** ) ) ) ) ) ) ) ) ) ) ) ) Motion to compel deposition; non testifying expert who is collaborator to testifying
expert

Roger J. Marzulla, Marzulla Law, LLC, Washington, D

. C

. , for plaintiff. With him on the briefs was Nancie G. Marzulla, Marzu lla Law, LLC, Washington, D

. C.

Geoffrey Martin Long, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D

. C

. , for defendant. With him on the briefs

were Joseph H. Hunt , Acting Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, United States Department of Justice, Washington

, D

. C.

O PINION AND O RDER

LETTOW, Senior Judge.

This case concerns claims by plaintiff, Hahnenkamm, LLC

, that the United States
breached a contract and contraven ed two federal statutes, the Santini

- Burton Act , Pub. L. No. 96

- 586, 94 Stat. 3381 (1980) (not codified in relevant part in the United States Code), and the Southern Nevada Public Land Management Act , Pub. L. No. 105

- 263, 112 Stat. 2343 (1998) (“Southern Nevada Land Act”) (not codified in relevant part in the United States Cod e)

, when
and as the United States Forest Service’s Lake Tahoe Bas in M anagement Unit acquired “Cave Rock Summit,” a 39.25 acre tract of land overlooking Lake Tahoe in Douglas County, Nevada

. Compl. at 1

- 2. The transaction occurred under an Option Agreement entered between
Hahnenkamm and the Forest Service

. Compl. at 1

- 2 & ¶ 6

. The l and appraisal is at issue. 1

1 Hahnenkamm alleges that the statutes, which authorize the Forest Service to acquire “environmentally sensitive lands” in the Lake Tahoe region, require the Forest Service to pay fair market value for those acquisitions, and that the Option Agreement that g overned the transaction likewise obligated the Forest Service to pay fair market value and obtain an appraisal that conformed to certain federal land appraisal standards

— standards with which the Forest Service allegedly did not comply. Compl. at 1 & ¶ 34.2 Pending before the court is plaintiff ’s motion to compel the deposition of a collaborator in the preparation of the government’s expert report on valuation. Pl.’s Mot. to Compel Deposition (“Pl.’s Mot. to Compel”) , ECF No. 39. The government has opposed plaintiff’s motion, arguing that the collaborator is a non

- testifying expert who should not be subject to a deposition under Rul e 26(b)(4)(D) of the Rules of the Court of Federal Claims (“RCFC”). See Def.’s Opp’n to Pl.’s Mot. to Compel (“Def.’s Opp’n”) , ECF No. 42. Hahnenkamm has filed a reply. See Pl.’s Reply in Support of Its Mot. to Compel Deposition (“Pl.’s Reply”) , ECF No. 43. The motion has thus been fully briefed by the parties and is ready for disposition.

BACKGROUND

This case was filed on June 23, 2017. After a motion to dismiss filed by the government was denied on December 7, 2017, see Hahnenkamm, LLC v. United Sta tes , 135 Fed. Cl. 5 79 (2017), the government filed an answer on January 25, 2018. Answer, ECF No. 20. Subsequently, the government filed an amended answer on August 30, 2018. Am. Answer, ECF No. 32. Thereafter, the parties undertook discovery to prepar e the case for a trial scheduled to occur from June 1 through 5, 2020. See Scheduling Order (July 15, 2019), ECF No. 38. Discovery proceeded without undue controversy, except for the current di s pute over plaintiff’s effort to depose Eric Schneider, a colleague and collaborator of the government’s named appraisal expert, Stephen D. R oach. See Pl.’s Mot. to Compel at 1; Def.’s Opp’n at 2.

Eric Schneider works with Mr. Roach at Jones, Roach & Cari n gella, Inc., and Mr. Schneider is also an appraiser. Def.’s Opp’n at 2. In certifications attached to Mr. Roach’s appraisal reviews, Mr. Roach “certified that Mr. Schneider provided ‘significant professional assistance’ in the conduct of the assignments.” Id . at 3. Mr. Roach was deposed by plaintiff’s counsel and answered questions about the assistance Mr. Schneider had provided

. Id . Mr. Roach testified at his deposition that Mr. Schneider “in itially structured some of the review conclusion[s] that are stated in the[] th ree exhibits [to the reviews].” Pl.’s Mot. to Compel at 3 (quoting Roach Dep. 29:14 to 30:1 and 31:2 to 33:13 (July 2, 2019)).

Mr. Roach was also asked: “[W]ould you character ize your work with Mr. Schneider on preparing those three reports as collaborative?” Id . Mr. Roach responded that

, “I think it’s a fair characterization as to some . . . of the work, yes.” Id

. Billing statements produced by the government confirm that Mr. Schneider did substantial work. See Pl.’s Mot. to Compel at 3. “Through May 6, 2019, [Mr.] Schneider billed ‘128.0 hours’ for his work, whereas [Mr.] Roach
. . . billed ‘126.0 hours.’” Id

.

Although discovery has closed, the parties have stipulated that timeliness would not bar the motion to compel now pending before the court. Pl.’s Mot. to Compel at 3.

STANDARDS FOR DECISION

RCFC 26( b )(4)(A) provides in pertinent part that “[a] party may depose any person who has been identified as an expert who se opinions may be presented at trial.” Contrastingly, an “expert employed only for trial preparation,” RCFC 26(b)(4)(D) (heading, capitals omitted), may not be deposed, ab sen t “exceptional circumstance s .” Id

. The Rule specifies that

—

Ordinarily, a party may not, by interrogatories or deposition

, discover facts known or opinions held by an expert who has been retained or specially employed by3 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 RCFC 35(b); or (ii) On showing exceptional circumstances under which it is impracticable for the party to obtain facts or o pinions on the same subject by other

means.

RCFC 26(b)(4)(D ) (emphasis added). 2 Because RCFC 35(b) does not apply, 3 the question presented is whether exceptional circumstances appertain such that a deposition of Mr. Schneider is appropriate even though he is a non

- testifying expert.

ANALYSIS

Hahnenkamm argues that i t has met its significant burden to show exceptional
circumstance s for the deposition of Mr. Schneider. Pl.’s Mot. t o Compel at 5. It emphasizes that
Mr. Roach’s collaboration with Mr. Schneider and Mr. Roach’s substantial relianc e on Mr. Schneider’s professional work ha ve been established and that the resulting reports appear to
reflect an indivisible result. See i d . at 8. Hahnenkamm cites a set of cases applying Fed. R. Ci v

. P. 26(b)(4)(D) for the proposition that a non

- testifying expert who co

- authored and collaborated in preparing an expert report was subject to deposition. See Pl.’s Mot. t o Compel at 5

- 8 (citing Apple, Inc. v. Amazon.com, Inc ., No. 11

- 1327 PJH, 2013 WL 1 320760 (N .D. Cal. Apr. 1, 2013);
United States ex rel. Westrick v. Second Chance Body A r mor, Inc ., 288 F.R.D. 222, 228 (D.D.C. 2012); Interface Group

- Nevada Inc. v. Men’s Apparel Gui ld in Cal., Inc ., No. 2:04

- CV

- 0351

- JCM

- GWF, 2006 W L 8441913 (D. Nev. Jan

. 3, 2006); Long

- Term Capit a l Holdings v. United

States , No. 01

- CV

- 12 9 0(JBA), 2003 WL 21269586 (D. Conn. May 6, 2003); Herman v. Marine
Midland Bank , 207 F.R.D. 26 (W.D.N.Y

. 2002); Derrickson v. Circuit City Stores, Inc. , No.

DKC 95

- 3296, 1999 W L 145 6 5 38 (D. Md. Mar. 19, 1999) )

.

The government counters that Hahnenkamm had another, obvious source for facts related
to Mr. Roach’s collaboration with Mr. Schneider

— i.e ., the deposition testimony of Mr. Roach. Def.’s Opp’n at 6. The government emphasizes that Hahnenkamm does not argue that Mr. Roach’s deposition was incomplete or that Mr. Roach spent nearly as much time on the expert reports as Mr. Schneider did. Id . at 6

- 7. T he government additionally points to the basi c purpose of the rule against ordinarily allowing discovery against a non

- testifying expert: “[a]llowing routine discovery as to these people would tend to deter th o rough preparation of the
case and reward those whose adversaries were most enterprising.” Def.’s Opp’n at 4 (quoting 8A Charles Alan Wright & Authur R. Miller, Federal Practice and Procedure § 2032 (3d ed.

2 019)). And , by “allowing access to the opinions of th e se retained experts . . . [

, ] the opponent might later seek to call them as witnesse s to a tt e s t to views that the opponent found congenial.”
Id

.

As a general matter, the courts that allowed the deposition of a non

- testifying expert have
focused on substantial collaborati ve work with a testifying expert. Perhaps the seminal decision

2 Because RCFC 26( b )(4)(D) mirrors Fed. R. Civ. P. 26(b)(4) ( D), both rules should be
construed in pa r i m at er ia

.

3 RCFC 35(b) relat e s to physical and mental examinations.4 is Derrickson , an employment discrimination case, where a non

- testifying assistant had worked
“hand

- in

- glove” in analyzing data. Derrickson , 1999 WL 1456538, at *7. The court found that
the “fruits of their labor [ were ] indivisible” and that the resulting e xpert report reflected a

“s eamless collaboration.” Id . Those circumstance s justified the deposition of the non

- testifying
collaborator. Id

.

Similarly, i n the Apple case, the court ordered that two assistants of the expert witness be deposed. Apple , 2013 WL 1320760, at *3

- 4. The assistants had developed surveys, collected data from the surveys, and analyzed those data. See i d . The ruling c o urt emphasized that the surveys and data had influen ced the expert’s opinion. Id . To the same effect, see Long

- Term Capit a l Holdings , 2003 WL 21269586, at *1.

These decisions turn on detailed involvement by the non

- testifying individuals in the underlying basis for the testif ying expert’s report. Where the collaborator has spent more time on the matter than the testifying expert and has provided the underpinning for the expert’s report,
courts have ordered the non

- testifying individual to be deposed. See Interface Group

- Neva da

, 2006 WL 8441913, at *4; Herman , 2 07 F.R.D. at 31

. Because the facts of this case fit the same pattern, Hahnenkamm is entitled to depose Mr. Schneider.

Hahnenkamm has met it s burden of showing that exceptional circumstance s apply here, in that only Mr. Schneider can attest to his underlying process. That is not to say that a deposition of Mr. Schneider should be open ended . The government urges that the court limit questioning of Mr. Schneider “to facts regarding the p rocess by which Mr. Schneider assisted
Mr. Roach. ” Def.’s Opp’n at 8. Such a limitation appears generally appropriate

. Otherwise, Hahnenkamm may depose Mr. Schneider regarding t he nature of his work in gathering facts and in assisting Mr. Roach, but he may not be questioned about any opinion that he may have developed in the course of that work. See Second Chance Body Armor , 228 F.R.D. at 228; Interface Group

- Nevada , 2006 WL 844 1913, at *3; Long

- Term Capit a l Holdings , 2003 WL 21269586, at *4.

CONCLUSION

Hahnenkamm’s motion to compel the deposition of Mr. Schneider is GRANTED, subject
to the limitation stated supra

.

I T IS SO ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge