Opinion
Civil Action No. 2:13-cv-00419-PMD
06-16-2014
Theodore G. Hartsock, Jr., as Personal Representative of the Estate of Sarah Mills Hartsock, Plaintiff, v. Goodyear Dunlop Tires North America LTD, a foreign corporation; and The Goodyear Tire & Rubber Company, Defendants.
ORDER
This matter is before the Court upon Defendants' Motion for Reconsideration of the May 5, 2014 Order Granting in Part and Denying in Part Defendants' Motion for Protective Order ("Motion for Reconsideration"). For the reasons stated below, the Court denies the Motion.
STANDARD OF REVIEW
"An interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). "Motions for reconsideration of interlocutory orders are not subject to the strict standards applicable to motions for reconsideration of a final judgment." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). Nonetheless, district courts in the Fourth Circuit look to those standards for guidance. Joe Hand Promotions, Inc. v. Double Down Entm't, LLC, C/A No. 0:11-cv-02438, 2012 WL 6210334, at *2 (D.S.C. Dec. 13, 2012). Thus, "the following are appropriate reasons for granting a Rule 54(b) motion: (1) to follow an intervening change in controlling law; (2) on account of new evidence; or (3) to correct a clear error of law or prevent manifest injustice." Id.; see Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (same). A motion for reconsideration, however, "is not an opportunity to rehash issues already ruled upon because a litigant is displeased with the result." Joe Hand Promotions, 2012 WL 6210334, at *2. For this reason, before filing a motion for reconsideration, a litigant "should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the court and the litigant." Dockins v. Benchmark Commc'ns, 180 F.R.D. 294, 295 (D.S.C. 1998), aff'd, 176 F.3d 745 (4th Cir. 1999) (internal quotation mark omitted).
In their Motion for Reconsideration, Defendants include facts derived from an affidavit of Jim Stroble, which was attached to their Motion. However, Defendants have not claimed that the information in Mr. Stroble's affidavit is new evidence not available at the time Defendants filed their Motion for Protective Order or the supplemental briefing. The Court has reviewed the affidavit and concludes that nothing in the affidavit constitutes "new evidence" sufficient to justify a motion for reconsideration. Accordingly, in ruling on the Motion for Reconsideration, the Court will not consider Mr. Stroble's affidavit.
ANALYSIS
On February 5, 2014, Defendants moved the Court for a protective order establishing limits on discovery. At a hearing held on April 15, 2014, Defendants asked for permission to submit supplemental briefing on the issue of whether employees Jim Stroble and Terrence Parsons are non-testifying experts who are exempt from giving a deposition under Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure. The Court granted Defendants' request, and the parties briefed the issue. On May 5, 2014, the Court denied Defendants' motion for an order protecting Mr. Stroble and Mr. Parsons from deposition. The Court, upon considering the language of the rule and the Advisory Committee note, as well as the record evidence describing the employment duties of Mr. Stroble and Mr. Parsons, concluded that neither employee is subject to protection under Rule 26(b)(4)(D):
Rule 26(b)(4)(D) provides: "Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial."
The record thus demonstrates that Mr. Stroble and the engineers in the Product Analysis Department are regular employees of Defendants whose regular job duties include analyzing tires like the Tire at Issue. In other words, Mr. Stroble "is simply a general employee of the party not specially employed on the case." Fed. R. Civ. P. 26(b)(4)(D) advisory committee's note. Based on these facts, the Court concludes that neither Mr. Stroble nor any other engineer in that department (including Mr. Parsons) is "retained or specially employed" within the meaning of Rule 26(b)(4)(D). Accordingly, the Court denies Defendants' motion for a protective order with respect to both Mr. Stroble and Mr. Parsons.May 5, 2014 Order 8, ECF 83.
The Advisory Committee Note explains that Rule 26(b)(4)(D) "exclude[es] an expert who is simply a general employee of the party not specially employed on the case." Fed. R. Civ. P. 26(b)(4) advisory committee's note.
As the Court explained in its Order, courts are not in agreement on the question of whether an in-house expert can fall within the meaning of Rule 26(b)(4)(D). For instance, several courts—including one court in the Fourth Circuit—have found that in-house experts never fall within the ambit of Rule 26(b)(4)(D). See, e.g., Va. Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 406 (E.D. Va. 1975) ("As to a person who is an expert in a trade or science but who is neither retained nor specially employed but merely is, has been, and will be an employee of defendant without regard to the pendency of the claim, the Court has considerable doubt as to how or whether . . . [Rule 26(b)(4)(D)] would apply."). Other courts, however, have recognized instances where an in-house expert can be considered "specially employed in anticipation of litigation" and thus fall within the protection of the rule. With respect to the second line of cases, this Court observed that "in cases finding that a regular employee may be deemed an in-house expert immune from discovery, the courts seem to require that, in addition to being in anticipation of litigation, the special employment be on a project other than the kind the employee normally is engaged in." May 5, 2014 Order 7 (further explaining that "[u]nder such an interpretation, 'the rule would not be operative unless it could be shown that the employee was given a project that he wouldn't ordinarily be working on'" (quoting Tellabs Operations, Inc. v. Fujitsu Ltd., 283 F.R.D. 374, 387 (N.D. Ill. 2012))). The Court then declined to determine which line of cases is correct because the Court found that, under either approach, neither Mr. Stroble nor any engineer in his department is subject to protection under Rule 26(b)(4)(D).
See, e.g., United States v. 22.80 Acres of Land, 107 F.R.D. 20, 21 (N.D. Cal.1985) ("[Rule 26(b)(4)(D)] was intended to extend protections not to a party's regular employees, but to outside experts a party retains once that party anticipates litigation or is preparing for trial."); Kansas-Nebraska Natural Gas Co., Inc. v. Marathon Oil Co., 109 F.R.D. 12, 15-16 (D. Neb. 1985) (observing that "the use of the terms 'retained or specially employed' implies something more than simply the assignment of a current employee to a particular problem raised by current litigation").
See, e.g., In re Shell Oil Refinery, 132 F.R.D. 437, 442 (E.D. La. 1990) (finding that employees, whose usual duties did not include litigation assistance but who were directed by employer's legal department to investigate the cause of an explosion, were non-testifying experts under Rule 26(b)(4)(D)); Seiffer v. Topsy's Int'l, Inc., 69 F.R.D. 69, 72 (D. Kan. 1975) (finding that where accounting firm faced possible litigation related to its audits, accounting partner—who had not been involved in the audits but who had been asked by accounting firm's attorney to review the audit reports to assist with litigation preparation—was a 26(b)(4)(D) expert).
In their Motion for Reconsideration, Defendants argue that the Court's interpretation of Rule 26(b)(4)(D) constitutes a clear error of law. However, as discussed above and in the Court's May 5 Order, federal courts are split on the application of Rule 26(b)(4)(D) to in-house experts. Defendants have not cited any controlling Fourth Circuit law in support of their position, and at least one court within the Fourth Circuit has observed that in-house experts likely would never fall within the ambit of Rule 26(b)(4)(D). See Va. Elec. & Power Co., 68 F.R.D. at 406. Because there is neither consensus among courts nor binding precedent governing this Court's application of Rule 26(b)(4)(D) to the facts of this case, the Court concludes that it did not clearly err in finding that neither Mr. Stroble nor Mr. Parsons is subject to protection under Rule 26(b)(4)(D). Cf. Dockins, 180 F.R.D. at 295-97 (concluding that the court did not clearly err by applying a heightened legal standard where the federal courts were split on, and the Fourth Circuit had not clearly addressed, the proper standard courts should apply to summary judgment motions in discrimination cases).
Furthermore, the Court is not persuaded by Defendants' arguments that the Court's ruling will result in manifest injustice. Defendants contend that "allowing the Court's Order to stand will cripple Defendants' efforts to defend themselves vigorously against product liability claims," will result in "wide ranging negative consequences for other product manufacturers," and "will have a chilling effect on the Company's willingness to specially employ its own resources in a litigation setting, thereby placing the Company at a severe disadvantage when defending its products." Mot. for Reconsideration 11, ECF 84. However, the Court does not agree that such dire consequences will follow from the Court's application of Rule 26(b)(4)(D) to the facts of this case. Rule 26(b)(4)(D) protects from deposition "an expert who has been retained or specially employed by another party in anticipation of litigation." As the Court explained in its Order, "there is no indication in the record that [Mr. Stroble and Mr. Parsons] have any duties or responsibilities other than analyzing . . . tires and field scenes" that are involved with either a claim or an accident. May 5, 2014 Order 8. The Court thus found that Mr. Parsons and Mr. Stroble—who are regular, salaried employees of Defendants whose regular job duties include evaluating all tires that are involved in litigation—have been neither retained nor specially employed by Defendants in anticipation of litigation. If Defendants wish to invoke the protection of Rule 26(b)(4)(D) for non-testifying experts, they could retain an outside expert to evaluate the tires involved in litigation—which is clearly contemplated by the rule—or they could modify their policies and procedures to ensure that in-house experts who are asked to consult in a litigation matter are truly "specially employed" on the matter and not simply performing the same duties they are assigned to do as a matter of course.
The Court notes that this type of modification still may not yield Rule 26(b)(4)(D) protection in courts that hold that in-house experts never fall within the ambit of the rule. --------
Moreover, the Court finds unpersuasive Defendants' assertion that they will suffer manifest injustice when the depositions go forward because Plaintiff will be "afforded unfair, unwarranted, and unjustified access to the opinions, thoughts, and mental impressions of their adversary in high stakes litigations." Mot. for Reconsideration 12. Although the Court has held that Mr. Stroble and Mr. Parsons are not protected from deposition under Rule 26(b)(4)(D), nothing in the May 5 Order prevents Defendants from properly asserting the protections of the attorney-client privilege or the work-product doctrine with respect to certain testimony or documents specifically related to this litigation.
Finally, Defendants request that the Court certify its Order for an immediate appeal pursuant to 28 U.S.C. § 1292(b). "In the Fourth Circuit, it is well settled that discovery orders are not subject to direct appeal." Griego v. Ford Motor Co., 19 F. Supp. 2d 531, 533 (D.S.C. 1998) (citing MDK, Inc. v. Mike's Train House, 27 F.3d 116 (4th Cir. 1994)). Section 1292(b), however, permits the district court to certify an interlocutory appeal if the court's order (1) involves a controlling question of law (2) as to which there is a substantial ground for difference of opinion and (3) immediate appeal may materially advance the ultimate termination of the litigation. Id. Certification under § 1292(b) "should be used sparingly and . . . its requirements must be strictly construed." Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). Although the decision to certify an interlocutory appeal is firmly within the district court's discretion, "the district court should grant this extraordinary remedy only in exceptional circumstances where early appellate review would avoid a protracted and expensive litigation process." Michelin N. Am., Inc. v. Inter City Tire & Auto Ctr., Inc., C.A. No. 6:13-1067-HMH, 2013 WL 5946109, at *2 (D.S.C. Nov. 6, 2013) (internal quotation marks omitted).
The Court declines to certify its May 5 Order because Defendants have failed to make the showing required by 28 U.S.C. § 1292(b). First, Defendants have failed to show that the Court's application of Rule 26(b)(4)(D) to the facts of this case constitutes a controlling question of law. See Speizman Knitting Mach. Co. v. Terrot Strickmaschinen GmBH, 505 F. Supp. 200, 202 (W.D.N.C. 1981) ("A question which requires a factual as well as legal decision is not suitable for interlocutory review."); see also Griego, 19 F. Supp. 2d at 533 (explaining that "discretionary orders such as those concerning discovery will involve a controlling question of law only in the rarest of cases"). Moreover, an immediate appeal of this discovery order will not materially advance the ultimate termination of the litigation. Instead, an interlocutory appeal would only further delay the ultimate termination of this case. Accordingly, the Court concludes that the May 5 Order is not subject to interlocutory appeal and thus denies Defendants' request.
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants' Motion for Reconsideration is DENIED.
AND IT IS SO ORDERED.
/s/_________
PATRICK MICHAEL DUFFY
United States District Judge June 16, 2014
Charleston, SC