United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO COMPEL PRODUCTION OF NON-PRIVILEGED DOCUMENTS
CONSIDERED BY EXPERT WITNESS DR. BARBARA ARNOLD
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. Plaintiff replied on June 19, 2019. [Doc. 262].
Intrepid submitted documents to the Court for in
camera review on July 2, 2019. The Court has considered
the briefing, the relevant portions of the record, the
relevant law, and the documents it reviewed in
camera. Being otherwise fully advised in the premises,
the Court will DENY Plaintiff's Motion.
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 Mr. Gamble to
unlawfully take advantage of his knowledge of Mosaic's
confidential langbeinite-processing technique. [Doc. 221] at
Mosaic retained Carlos Perucca as an expert. He submitted an
expert report, where he opines about Mosaic's alleged
trade secrets, among other issues. See [Doc. 208-6]
at 3. Attached to the report were certain documents that had
been produced by Intrepid in the course of discovery.
See [Doc. 282] (clerk's minutes). 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.
Toll forwarded the attachments to Mr. Perucca's report to
Dr. Arnold via email on February 17, 2019. See [Doc.
233-1] at 2. In that email, Mr. Toll asked Dr. Arnold
questions about some of the attachments. Dr. Arnold
subsequently participated in a conference call with Mr. Toll
and Chris Nyikos, an Intrepid employee. The three discussed
the questions Mr. Toll raised in the February 17, 2019 email,
as well as the documents attached thereto. During the
conference call, Dr. Arnold took notes on a hard copy of the
email. [Doc. 224-3] at 9. These notes are the subject of the
instant Motion to Compel. The Court will refer to the
document at issue- which includes both the hard copy of the
email and Dr. Arnold's handwritten notes on it-as
“the document.” Plaintiff believes the notes on
the document are discoverable because they reflect
“facts or data” considered by Dr. Arnold in
formulating her opinions. [Doc. 221] at 4-6. Dr. Arnold
testified that the conversation with Mr. Nyikos “was
more to clarify some of the . . . documents.” [Doc.
224-3] at 9. She has also stated that she did not refer back
to her notes of the conversation when she prepared her report
because the discussion with Mr. Nyikos “simply
clarified all the points that I needed to have
addressed.” [Doc. 233-2] at 3.
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, see
[Doc. 224-3] at 9, and defense counsel declined to produce it
as well, claiming that the work-product doctrine protected
it. See [Doc. 224] at 2. On May 15, 2019, Plaintiff
filed the instant Motion to Compel the document's
production. [Doc. 221]. On July 2, 2019, the Court ordered
Intrepid to email it an unredacted copy of the documents at
issue for in camera review. [Doc. 280]. Intrepid did
so on the same date.
reviewed in camera an unredacted copy of the
document in question, see [Doc. 233-1], the Court
will deny Plaintiff's Motion to Compel. Intrepid argues
that it need not produce the document because it contains
attorney work product. [Doc. 233] at 5-7. The Court agrees.
In camera review revealed that Mr. Toll's
questions in the document clearly and unambiguously go to the
claims and defenses in the lawsuit and reflect his thought
processes and mental impressions regarding Mr. Perucca's
report. The text of the email contains no facts or data upon
which Dr. Arnold might have relied in formulating her
opinions. Such information represents attorney work product.
See Fed. R. Civ. P. 26(b)(3)(A).
Nyikos or Mr. Toll had provided any facts or data that Dr.
Arnold considered in forming her opinions, and those facts or
data were reflected in Dr. Arnold's notes, the Motion
would have some merit. But that is not the case. To the
extent Dr. Arnold's notes could be described as
reflecting facts or data, there is no indication that such
facts or data came from Mr. Nyikos, Mr. Toll, or anywhere
other than the documents attached to the email, documents
which had been produced in discovery and reviewed by
Mosaic's expert. Communications between attorneys and
their experts for purposes of trial preparation, including
interpretation of documents produced during discovery, are
not discoverable. See Fed. R. Civ. P. 26(b)(4)(C).
There is no indication that Dr. Arnold's notes reflect
anything other than such discussions.
Intrepid argues, “Unfortunately, there is no way to
distinguish which notes-if any-reflect pure facts or data
provided to Dr. Arnold as opposed to work product. The notes
themselves do not so distinguish.” [Doc. 233] at 7.
Having reviewed an unredacted copy of the document, the Court
agrees. As a practical matter, it would be impossible to
disentangle any “facts or data” from reflections
on counsel's mental impressions without ordering
production of the entire document, which would defeat the
purpose of Rule 26(b)(4)(C)(ii).
IS THEREFORE ORDERED that Plaintiffs Motion to
Compel Production of Non-Privileged Documents Considered by
Expert Witness Dr. Barbara Arnold [Doc. 221] is
DENIED. The parties are to bear their own
costs and attorney's fees incurred in connection with the