The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
ORDER CONFIRMING THE DENIAL OF HANSEN'S REQUEST TO DEPOSE DR. GAIL MAHADY
(Doc. Nos. 194, 200, & 212)
Hansen's request to depose Dr. Gail Mahady, a non-testifying expert for Innovation Ventures, is DENIED. (See Doc. Nos. 194, 200, and 212.)
Dr. Mahahdy is currently designated as a non-testifying expert by Innovation Ventures. Innovation Ventures de-designated Dr. Mahady from the status as a testifying trial expert in December 2009. Innovation Ventures had previously submitted Dr. Mahady's declaration in opposition to Hansen's Motion For Preliminary Injunction (see Doc. No. 25, Ex. 18) which was decided by the Court on September 29, 2008. (Doc. 38.) Hansen previously has obtained the documents and things Dr. Mahady relied on in forming the opinions reflected in her declaration.
On March 3, 2010, the Court held a discovery conference to address Hansen's request to depose Dr. Mahady and others. The Court reviewed the parties' briefs on the Dr. Mahady issue, exhaustively discussed every case cited by each party, and explained at length why these cases and the current case status did not support Hansen's request to now depose Dr. Gail Mahady, a non-testifying expert. The Court further noted that case law on this issue is far from settled. The Court explained that:
1) Dr. Mahady's deposition was used nearly two years ago to defeat Hansen's motion for preliminary injunction;
2) Hansen had ample opportunity to depose Dr. Mahady when she was designated as a testifying expert before the Court rendered its decision on the motion for preliminary injunction, but for unknown reasons, chose not to do so;
3) Hansen was provided the documents underlying Dr. Mahady's opinions reflected in her declaration;
4) Dr. Mahady may not be deposed as she is no longer designated as a testifying expert and will not serve as a trial witness;
5) Hansen has not shown exceptional circumstances justifying the need to depose Dr. Mahady now; and
6) Innovation Ventures' newly designated testifying trial expert, not Dr. Mahady, may be deposed and subject to cross examination at trial, possibly with Dr. Mahady's report.
Following this discussion, and after input from both the parties, the Court ordered Hansen to provide focused supplemental briefing on the issue of Dr. Mahady's deposition.
In the written order (Doc. No. 208), filed March 5, 2010, the Court reiterated its oral instructions to Hansen. Specifically, the written ...