United States District Court, D. New Mexico
ORDER FOR IN CAMERA PRODUCTION OF DOCUMENTS
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Compel Production of Non-Privileged Documents Considered by
Expert Witness Dr. Barbara Arnold [Doc. 221], filed on May
15, 2019. Defendants Intrepid Potash, Inc., and Intrepid
Potash-New Mexico, LLC (collectively, “Intrepid”)
responded on June 4, 2019. [Doc. 233]. Defendant Gamble did
not respond. Plaintiffs replied on June 19, 2019. [Doc. 262].
The Court has considered the briefing, the relevant portions
of the record, and the relevant law. Being otherwise fully
advised in the premises, the Court orders that Intrepid, no
later than July 8, 2019, submit to it via email an unredacted
copy of the documents at issue for in camera review.
Potash Carlsbad, Inc. (“Mosaic” or
“Plaintiff”) sued Defendants Intrepid and Steve
Gamble for trade-secret appropriation, among other claims.
[Doc. 66] at 22 (Consolidated Complaint). It alleges that
Intrepid hired former Mosaic employee Gamble to unlawfully
take advantage of his knowledge of Mosaic's confidential
langbeinite-processing technique. [Doc. 221] at
Intrepid retained Dr. Barbara Arnold, a mineral-processing
expert, to testify about Mosaic's alleged trade secrets,
whether the trade secrets represent common industry
knowledge, and the trade secrets' likely effect on
Intrepid's operations. [Doc. 210-1] at 6-7.
to issuing her report, defense counsel sent Dr. Arnold an
email apparently with some relevant attachments and with
defense counsel's questions about the attachments. See
[Doc. 233-1] at 2. Dr. Arnold then participated in telephone
conversations with defense counsel and an Intrepid employee,
Chris Nyikos. [Doc. 233] at 1. She testified that Nyikos
clarified and interpreted the attachments to the email. [Doc.
224-3] at 9. On a four-page hardcopy of the email, she took
notes about what Nyikos told her. Id.; [Doc. 233-1]
at 2. The Court will refer to this document-which includes
both a copy of the email and Dr. Arnold's notes on it-as
“the document.” The document lies at the heart of
the instant dispute. Plaintiff sent Dr. Arnold a subpoena
ordering production of “[a]ll documents related to
[this case] and/or your expert opinions offered in [this]
case.” [Doc. 224-2] at 1. Dr. Arnold did not produce
the document because “the attorneys were also on the
telephone.” [Doc. 224-3] at 9.
sent a letter to Intrepid's counsel requesting any notes
Dr. Arnold made concerning these conversations. [Doc. 224-4]
at 2. Defense counsel declined to produce the document,
claiming that the work-product doctrine protected it. See
[Doc. 224] at 2. On May 15, 2019, Plaintiffs filed the
instant Motion to Compel the document's production. [Doc.
Rule of Civil Procedure 26(a)(2)(B) provides that, for an
expert witness who-as with Dr. Arnold-provided a written
report, the report must contain the “facts or data
considered by the witness in forming” her opinions.
Fed.R.Civ.P. 26(a)(2)(B)(ii). Rule 26 requires production of
factual materials reviewed by an expert prior to issuing a
report. See, e.g., Cordero v. Froats, No. 13-cv-0031
JCH/GBW, 2016 WL 7426579 (D.N.M. Oct. 27, 2016) (stating that
“‘facts or data' in Rule 26(a)(2)(B) is
interpreted broadly to require disclosure of any material
considered by the expert, from whatever source, that contains
factual ingredients.” (citing In re Republic of
Ecuador, 735 F.3d 1179, 1187 (10th Cir. 2013))).
These factual materials include notes an expert takes
describing facts or data about the lawsuit. Salazar v.
Ryan, No. CV-96-00085-TUC-FRZ, 2017 WL 2633522, at *7-8
(D. Ariz. June 19, 2017) (stating that notes prepared by an
expert are discoverable if they “are mere records of .
. . witnesses' direct statements, and do not incorporate
[the expert's] analysis, opinions[, ] or commentary on
those statements”); Republic of Ecuador v.
Bjorkman, No. 11-cv-01470-WYD-MEH, 2013 WL 50430, at *2
(D. Colo. Jan. 3, 2013) (“[N]otes, outlines, lists,
letters[, ] and memoranda prepared by an expert or
non-attorney concerning or relating to draft expert reports
are not protected and must be disclosed.”); In re
Republic of Ecuador, No. 4:11mc73-RH/WCS, 2012 WL 5519611, at
*3-4 (N.D. Fla. Nov. 2, 2012) (stating that Rule 26 permits
discovery of notes prepared by experts that “are not
sent to an attorney and are not part of a draft
a party need not produce an expert's notes when the notes
contain attorney work product. See Fed. R. Civ. P.
26(b)(3), 26(b)(4)(C). The work-product doctrine allows a
party to refuse to produce even relevant documents
“that are prepared in anticipation of litigation”
by the party's attorney, “subject to Rule
26(b)(4).” Fed.R.Civ.P. 26(b)(3)(A). Rule 26(b)(4), in
turn, permits discovery of certain communications between a
party's attorney and an expert. Fed.R.Civ.P. 26(b)(4)(C).
Specifically, normal work-product protections do not apply
when the communications at issue “identify facts or
data that the party's attorney provided and that the
expert considered in forming the opinions to be
expressed.” Fed.R.Civ.P. 26(b)(4)(C)(ii).
argues that the Court should deny Plaintiff's Motion for
three reasons: (1) Dr. Arnold did not “consider”
the document when forming her opinion, (2) the document
contains attorney work product, and (3) Nyikos'
interpretation or clarification of the attachments are not
“facts or data” under Rule 26. [Doc. 233] at 3-8.
For the following reasons, the Court rejects Intrepid's
first argument and reserves ruling on the latter two
arguments until it reviews the document in camera.
first argues that it need not produce the document because
Dr. Arnold did not “consider” it when forming her
opinion. It argues that she testified that she only
considered the conversations with Nyikos when
preparing her report, not the notes of those
conversations. [Doc. 233] at 2-3. Dr. Arnold avers,
“In completing my Expert Report, I did not refer back
to the handwritten notes I made on this hardcopy of
Intrepid's counsel's email . . . .” [Doc.
233-2] at 3.
assertion does not preclude a finding that Dr. Arnold
considered the document in forming her opinions. “A
court should not solely credit the subjective representations
of the expert when determining what the expert
‘considered.'” United States v. Dish
Network, L.L.C., 297 F.R.D. 589, 596 (C.D. Ill. 2013).
“[E]ven if the expert avers under oath that [s]he did
not actually consider certain materials in forming [her]
opinion, that will not control, ” and instead courts
apply an “objective test” that defines
“considered” as any facts or data on the subject
matter learned by the expert at any time before rendering her
In re Mirena IUD Prods. Liab. Litig., 169 F.Supp.3d
396, 471 (S.D.N.Y. 2016) (quoting EuclidChem.
Co. v. Vector Corrosion Techs., Inc., No. 1:05 CV 80,
2007 WL 1560277, at *3 (N.D. Ohio May 29, 2007)); see
Dish Network, L.L.C., 297 F.R.D. at 595. Rather than
asking whether the expert subjectively believed she
considered the materials, the court should simply ask whether
the “expert has read or reviewed the privileged
materials before or in connection with formulating his or her
opinion.” Johnson v. Gmeinder, 191 F.R.D. 638,
649 (D. Kan. 2000). Otherwise, the court would have to
“explore the expert's subjective mental ...