United States District Court, W.D. Washington, Seattle
R.D., a minor, by and through her personal representatives, CATHERINE DAVIS and SEAN DAVIS; and CATHERINE DAVIS individually; and SEAN DAVIS, individually, Plaintiffs,
LAKE WASHINGTON SCHOOL DISTRICT, Defendant.
Honorable Richard A. Jones United States District Judge.
Lake Washington School District (the “District”)
moves this Court for an order compelling Plaintiffs'
expert, Ruth Hayes-Short, to answer deposition questions
concerning the drafting of her expert reports. Dkt. # 25. For
the reasons that follow, the Court GRANTS
the District's motion.
a civil rights lawsuit. Plaintiffs Catherine and Sean Davis
allege that the District discriminated against their daughter
R.D. because of her Chilblains disability. Dkt. # 1-1.
Plaintiff engaged Ruth Hayes-Short to be an expert in the
areas of public school district governance and
administration, including standards of care in those fields.
Dkt. # 26-1 at 2-5. The District deposed Hayes-Short on April
3, 2019. Dkt. # 26-10 at 3. During the deposition, the
District's counsel asked Hayes-Short if someone gave her
a draft of information that she then incorporated into her
initial or rebuttal report. Id. She was also asked
whether Plaintiff's counsel wrote part of her initial or
rebuttal report. Id. Plaintiff's counsel
instructed Ms. Hayes-Short not to answer either question
based on privilege. Id. The deposition was not
adjourned and the District claims it will be reconvened after
resolution of this motion. Dkt. # 25 at 6.
Motion to Compel
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case . . . .”
Fed.R.Civ.P. 26(b)(1). A party may move for an order
compelling discovery if a party fails to produce what is
requested. Fed.R.Civ.P. 37(a)(3)(B)(iv).
District surmises that Plaintiff's counsel drafted
significant portions of Hayes-Short's initial and
rebuttal reports and wishes to question her on the extent of
counsel's involvement. Dkt. # 25 at 7. Specifically, the
District contends that there are discrepancies between the
facts underlying certain findings in Hayes-Short's
reports and what she would have received from either
Plaintiffs' or Plaintiffs' counsel. See,
e.g., id. at 4, 6. The District also claims
that the reports appear to be drafted by someone with a legal
background based on the sentence structure, vocabulary, and
overall tone. Id. at 4. In moving to compel
Hayes-Short to answer questions on these issues, the District
states that it does not intend to illicit testimony on
specific discussions Hayes-Short had with Plaintiff's
counsel; rather, it wants to know if she received prepared
draft reports from Plaintiff's counsel, whether her final
reports expanded on any of those prepared drafts, and
specifically which portions of the final reports were
prepared by Plaintiff's counsel. Id. at 10.
26(b)(4) permits parties to depose testifying experts.
Fed.R.Civ.P. 26(b)(4)(A). It further provides that Rule
26(b)(3) “protect[s] drafts of any report or disclosure
required under [the rule], regardless of the form in which
the draft is recorded.” Fed.R.Civ.P. 26(b)(4)(B). The
protection also extends to communications between the
party's attorney and any expert who must provide a
report, regardless of the form of the communications, except
to the extent the communications (i) relate to the
expert's compensation; (ii) identify “facts or
data” provided by the attorney that the expert
considered; or (iii) “identify assumptions that the
party's attorney provided and that the expert relied on
in forming” his or her opinions. Fed.R.Civ.P.
Rule 26(b)(4)'s protections for draft reports and
attorney-expert communications “do not impede discovery
about the opinions to be offered by the expert or the
development, foundation, or basis of those opinions.”
Fed.R.Civ.P. 26(b)(4) advisory committee's notes (2010
amendments). In this case, the District wishes to investigate
foundational issues that may undercut Hayes-Short's
opinions. The proposed questions do not delve into the mental
impressions or legal theories of an attorney that the
work-product privilege sought to protect. See U.S. v.
City of Torrence, 163 F.R.D. 590, 593 (C.D. Cal. 1995);
Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D.
384, 391 (N.D. Cal. 1991). Indeed, if Plaintiff's counsel
wrote portions of the final report, or if Hayes-Short adopted
or incorporated opinions written by Plaintiff's counsel
at his request, then that goes to her credibility as an
expert. See Id. at 389 (noting that it would be
contrary to Rule 26 amendments to “prohibit a party
from showing that the opinions an expert was presenting at
trial as his own had in fact been spoon fed to him and
written for him by the lawyer who retained him”).
the Court GRANTS the District's motion.
The parties should not construe this order as permitting
questions on the substance or contents of any communications
Hayes-Short had with counsel regarding case theories or
strategies. Any further deposition questions on this topic
are limited to whether, and to what extent, counsel or anyone
else was involved in preparing the expert reports exchanged
Request for Attorney's Fees
District seeks attorney's fees associated with bringing
the motion to compel. Under Rule 37, the Court
“must” award reasonable expenses associated with
the motion, including attorney's fees, if the moving
party prevails. Fed.R.Civ.P. 37(a)(5). However, the Court
must not order this payment if: (i) the movant filed the
motion before attempting in good faith to obtain the
disclosure or discovery without court action; (ii) the
opposing party's nondisclosure, response, or objection
was substantially justified; or (iii) other circumstances
make an award of expenses unjust. Because Plaintiff's