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Federal Deposit Insurance Corporation As Receiver For Indymac Bank, F.S.B v. Melanie anderson An Individual and Doing Business As Cottage Creek Appraisals

January 11, 2013


The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge


Defendant requests reconsideration of the Magistrate Judge's November 9, 2012, Order, which denied Defendant's motion to compel discovery concerning "communications between Ignacio Gomez[, whom the parties agree is a non-reporting expert witness] and attorneys for" Plaintiff. (Mot. Compel Disc. 5:24--26, ECF No. 84.)

The parties communicated with each other concerning the discovery dispute, during which Plaintiff refused to respond to what Plaintiff contended were untimely propounded document production requests and interrogatories in light of the prescribed discovery completion date. However, on September 11, 2012, Plaintiff offered to allow Defendant to depose Gomez, provided that the deposition was limited in scope to "communications between [Gomez] and counsel that he 'considered -- that is generated, saw, read, reviewed, and/or reflected upon -- in connection with' his rebuttal expert testimony in this case." (Order 2:9--12, ECF No. 87.)

Defendant subsequently requested the Court to modify the discovery period so that she could "move to compel discovery, subpoena documents[,] . . . and re-notice the deposition of Ignacio Gomez." (Def.'s Mot. Admin. Relief 1:22--26, ECF No. 78.) Defendant proposed in her discovery-period modification request that a new discovery "cutoff date be set for December 14, 2012." (Id. at 3:26--27). On October 5, 2012, the Court responded to Defendant's request by changing the discovery period as follows: "All discovery shall be completed by December 14, 2012." (Order Modifying Pretrial Scheduling Order, ECF No. 83.)

On October 10, 2012, Defendant indicated that Plaintiff's September 11, 2012 offer concerning Gomez's deposition was rejected by canceling Gomez's deposition, (Order 4:24, ECF No. 87), and filing the subject motion to compel. Defendant argues Gomez's deposition was cancelled because Plaintiff "refused to produce any documents in advance of Gomez's deposition." (Mot. Compel Disc. 5:26--27). Defendant argued in her motion to compel discovery that Sierra Pacific Industries supported her position since when Plaintiff "designat[ed] Ignacio Gomez as a non-reporting expert witness, [Plaintiff] waived otherwise applicable privilege and work-product protections." (Mot. Compel Disc. 6:2--4.)

The Magistrate Judge in this case authored Sierra Pacific Industries, in which he stated:

[S]ome non-reporting witnesses, such as treating physicians and accident investigators, should be treated differently than reporting witnesses with respect to the discoverability of their communications with counsel. See Minutes, Civil Rules Advisory Committee Meeting (April 20--21, 2009) p. 14 ("The Committee did not want to protect communications by one party's lawyer with treating physicians, accident investigators, and the like. An employee expert, moreover, may be an important fact witness."). These type[s] of witnesses are hybrid fact and expert opinion witnesses. While it is desirable that any testifying expert's opinion be untainted by attorneys' opinions and theories, it is even more important that a witness who is testifying regarding his own personal knowledge of facts be unbiased. Therefore, at least in some cases, discovery should be permitted into such witnesses' communications with attorneys, in order to prevent, or at any rate expose, attorney-caused bias.

Given the facts of this particular dispute, counsel's communications with White and Reynolds should not be protected. White and Reynolds are hybrid fact and expert witnesses. In addition to being current and former employees, White and Reynolds have percipient knowledge of the facts at issue in this litigation. As two of the three primary investigators of the Moonlight Fire, they have first-hand factual knowledge regarding the causes of the Moonlight Fire. If their communications with counsel were protected, any potential biases in their testimony regarding the causes of the fire would be shielded from the fact-finder.

The court declines to hold that designating an individual as a non-reporting expert witness waives otherwise applicable privileges and protections in all cases, or even for all cases involving non-reporting employee expert witnesses. But in this particular factual scenario, the United States waived its privilege and work-product protection by disclosing White and Reynolds as expert witnesses.

United States v. Sierra Pac. Indus., 2:09-cv-2445-KJM-EFB, 2011 WL 2119078 (E.D. Cal. May 26, 2011) (emphasis added).

During the motion to compel hearing, the Magistrate Judge told Defendant that he was concerned about "a lack of any genuine meet and confer as to this particular motion." (Tr. Hr'g 2:21--23, ECF No. 88.) Specifically, the Magistrate Judge stated:

THE COURT: . . . [O]ne of the things that [b]others me about the joint statement is that there was apparently an offer by the plaintiffs to allow you to depose Mr. Gomez and to depose him about attorney expert communications to the extent that Mr. Gomez relied on information that was provided in those communications that formed the basis for his opinions. I don't understand why you would turn that down. [Defendant's counsel]: Your Honor, with all due respect, we requested the documents themselves, and part of the prejudice in the hearing before that with respect to their disclosure of Ignacio Gomez in the first place was that we were going to run into a time crunch at the end of discovery where we wouldn't be able to subpoena documents from them because there simply wasn't enough time. And so, when we came down to it, we were talking to them, and trying to hammer out an agreement in which we would actually receive documents with respect to these communications. And if you read the e-mails between them, they don't actually offer up to provide the documents. They offer to allow us to -THE COURT: Well, given -- given that under the Ninth Circuit's Goodman case they had the option to simply redesignate and protect all of the communications, it seems to me a fairly generous offer. [Defendant's counsel]: . . . . [T]his case is exactly like Sierra Pacific in the sense that Ignacio Gomez's job is -- was at the time to review these particular underwriting agreements, which is just like the investigators in the Sierra Pacific case where their job wasn't to watch the fire happen, it was to investigate the fire after the fact. And now, Ignacio Gomez stands in exactly the same position as those investigators, Your Honor. * * * THE COURT: I'm standing by my inclination. I'm going to submit the matter. There's a few things I want to look at, but my inclination is to order what the plaintiffs originally had offered up, that is, allowing the deposition to go forward with the limitations that were suggested by the plaintiff. But I'm going to submit the matter, and I'll issue a written order.

(Tr. Hr'g 8:24--10:22, ECF No. 88.)

Subsequently, the Magistrate Judge issued the following ...

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