United States District Court, S.D. California
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE NO. 4 [ECF No. 46]
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
the Court is the parties' Joint Motion for Determination
of Discovery Dispute No. 4, whereby the parties request the
Court's assistance in determining whether Plaintiff's
retained expert, Paul Moore, may be shown documents
designated by Defendants as “confidential” and/or
“attorneys eyes only.” ECF No. 46. Having
reviewed the briefing submitted and for the reasons set forth
below, the Court finds that Mr. Moore qualifies as an
“independent” expert and may be shown
confidential documents needed for his testimony, provided
that he signs and adheres to the “AGREEMENT TO BE BOUND
BY PROTECTIVE ORDER” form in the Protective Order
entered in this case (ECF No. 33).
Pacific Marine Propellers, Inc. (“PMP”) and
Defendant Wartsila Defense, Inc. (“Wartsila”)
both are in the business of repairing marine propellers. ECF
No. 19 ¶¶ 6, 8. In its Second Amended Complaint,
Plaintiff presents seven claims related to Wartsila's
entry into the San Diego marine propeller repair market and
its actions in competing for government subcontracts.
Relevant to the specific issues presented in the instant
motion is the following background information.
31, 2017, PMP identified Mr. Paul Moore in its Initial
Disclosures as a person who may potentially have knowledge of
the underlying facts and events in this case. Subsequently on
September 19, 2017, PMP changed its position and notified
Mr. Paul Moore, identified in plaintiff's initial Rule 26
disclosure at Paragraph 28, appears to have no percipient
knowledge relative to matters at issue in this case.
Consequently, he has been engaged by counsel as a consulting
expert on behalf of the plaintiff, and will likely later be
engaged as a testimonial expert for trial. Mr. Moore may be
contacted through plaintiff's counsel.
46 at 2.
to Mr. Moore's CV, he retired from the Navy after 36
years of service. ECF No. 46-2 at 2. During this time at the
Navy, he was responsible for “the life cycle management
of all Navy submarine and surface ship propellers, shafting
and related equipment, ” including “[t]echnical
authority for all issues relating to manufacture, repair and
in-service.” Id. He was also an instructor for
propeller courses for the last 15 years. Id. He is
currently employed as a Part-time/On-call Marine Engineer at
ECS Federal, LLC, where he “[s]upports the National
Oceanic and Atmospheric Administration's (NOAA's)
Platform Acquisition Division in all facets of vessel
acquisition from preliminary design through vessel delivery,
” among other tasks for NOAA. Id.
Mr. Moore's Communications with PMP
to this motion, Mr. Moore had a prior relationship with PMP.
As pertinent background, on January 12, 2015, Derek Bateman
from PMP sent a letter to the Office of the Secretary of the
Navy regarding the contract originally awarded to PMP and
later cancelled and given to Wartsila. ECF No. 46-8. The
letter accuses Wartsila of not having a Basic Ordering
Agreement (“BOA”) to perform work in San Diego
and not being equipped to perform the work. Id. at
4. The letter specifically states that Wartsila applied for a
BOA but was rejected. Id. The letter also alleges
that Wartsila presented a letter signed by a Jeffrey Schumann
(“Schumann letter”) that qualifies Wartsila to
conduct propeller repairs in San Diego in connection to the
Lake Erie contract, and that this letter is in contradiction
to the BOA rejection. Id. Mr. Bateman goes onto to
call into question the appropriateness of the Schumann letter
and accuses Wartsila of deception in connection with that
letter and the contract bids. Mr. Moore's communications
with PMP appear to be related to at least some of the issues
raised in Mr. Bateman's letter.
response to an interrogatory regarding communications with
“any person concerning Wartsila's participation in
the San Diego propeller repair market, ” PMP disclosed
Starting in about January 2015, Mr. Bateman had conversations
by phone about once a month with Mr. Paul Moore, after his
retirement, concerning Wartsila's effort to enter the San
Diego propeller market. In the course of those conversations,
Mr. Moore suggested a congressional inquiry concerning the
status of Wartsila's San Diego operations as a
“NavSea Certified Propeller Repair Facility.”
They also discussed the range of Wartsila bid prices to the
extent they were then known and the reasonableness of those
bids considering the man-hours involved. They also discussed
the NAVSUP protest and its denial. We have no records from
which precise dates or times can be ascertained; however it
is fair to state that the conversations were contemporaneous
with the events discussed. Mr. King also had several similar
conversations with Mr. Moore and several email exchanges that
began about December 2014 and continued into 2015 concerning
Wartsila and how to address the issues with the protest.
Mr. King has made phone calls and sent email to Mr. Moore,
with whom he had a long professional working relationship and
now sees as a friend in retirement. Mr. King wrote to Mr.
Moore on May 13, 2015, and met with him not long after while
Mr. Moore was in San Diego for an unrelated matter. Mr. King
had expressed concerns to Mr. Moore about the technical
grinding to the edge of propellers being performed by
Wartsila and identified defects in the repairs that would
potentially impair the performance of the propeller blades to
the detriment of the Navy. He provided photographs to Mr.
Moore for his opinion ...