Opinion
No. 00-2043-CM
July 30, 2002
MEMORANDUM AND ORDER
Pending before the Court is Defendants' Motion to Compel Testimony from Thomas Crowley (doc. 335). For the reasons stated below, Defendants' Motion is granted in part and denied in part.
WR designated Thomas D. Crowley ("Crowley") as an expert witness in this case. Defendants deposed Crowley in that capacity in December 2001. Defendants assert that, during the course of the deposition, Crowley inappropriately refused to answer numerous questions on grounds of privilege and confidentiality. Defendants subsequently filed this Motion to Compel.
WR responds to this Motion first by notifying the Court that part of Defendants' Motion to Compel is moot. More specifically, WR states that, given this Court's January 31, 2002 Memorandum and Order requiring it to produce certain documents created by Crowley and listed in WR's amended privilege log, WR will produce Crowley for deposition regarding Crowley's communications with WR that previously were the subject of WR's attorney-client privilege and work product objections.
WR further responds, however, by arguing the balance of the Motion should be denied because (1) Defendants failed to confer about the discovery dispute prior to filing the Motion; and (2) even if Defendants had conferred, Crowley should not be required to disclose confidential information subject to protective orders issued in other proceedings, orders to which Crowley is legally bound to comply.
Failure to Confer
As a preliminary matter, the Court finds Defendants complied with local rule requiring them to confer with opposing counsel prior to filing this Motion. The transcript of Crowley's deposition reflects the parties engaged in an on-the-record discussion as to whether the protective order entered in this case should be sufficient to address Crowley's concerns regarding confidentiality. In light of this record, the Court finds Defendants complied with their duty to confer in good faith.
Deposition of Thomas Crowley, Ex. 1 to Memorandum in Support of Defendants' Motion to Compel Testimony (doc. 335) at 153:7 — 154:13; 185:14-186:9; 232:12-235:10.
Confidentiality
WR's argument against disclosure is two-fold: first, the information is confidential in nature and second, that Crowley is prohibited by court order from disclosing the information requested. As a preliminary matter, confidentiality does not equate to privilege, thus the allegedly confidential information about which Crowley refuses to testify is not protected from disclosure for the sole reason that it is confidential. If there is a court order prohibiting Crowley from testifying as requested, protection may be warranted. The Court is unable to determine whether protection is warranted, however, because WR fails to provide copies of the referenced protective orders in order for the court to determine to what extent the information is protected.
Roberts v. Shawnee Mission Ford, No. 01-2113-CM, 2002 WL 1162438, *2 (D.Kan. Feb. 7 2002) (citing Folsom v. Heartland Bank, No. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979))).
Accordingly, it is ordered that Defendants' Motion to Compel is granted to the extent that Crowley shall be required to respond to questions seeking confidential information, but if WR or Crowley claim that compliance with this Order violates the terms and conditions of a prior order of any court, then WR and/or Crowley shall file a motion for protective order within five (5) days from the date of this Order and attach as an exhibit to the motion a copy or copies of the applicable protective orders from such other courts. Pending court resolution of any such motion for protective order, if one is filed, Crowley shall not be required to testify to such confidential information.
It is further ordered that, given WR agrees in its pleading to produce Crowley for deposition to testify regarding communications that previously were the subject of attorney-client privilege and work product objections, that portion of Defendants' Motion is denied as moot.
IT IS SO ORDERED.