Opinion
C.A. No. 10C-03-151-JRJ
07-26-2012
Juan Pablo Alvarez, Individually and as Representative of the Estates of Pablo Alvarez Navarette (Deceased), Maria de los Angles Clementin Gonzalez Rangel (Deceased, Maya Alvarez Gonzalez (Deceased), Misael Alavarez, Oralia Ovalle Santiago v. Cooper Tire & Rubber Co.
Timothy E. Lengkeek, Esq. Young, Conaway, Stargatt & Taylor Somers S. Price, Jr., Esq. Potter, Anderson & Corroon
Judge
Timothy E. Lengkeek, Esq.
Young, Conaway, Stargatt & Taylor
Somers S. Price, Jr., Esq.
Potter, Anderson & Corroon
Dear Counsel:
For many, many months the parties have been negotiating the terms of the protective order. It is time to resolve this issue. I am convinced, after reviewing the Special Discovery Master's decision, the voluminous briefing and letters submitted on this issue, and the relevant case law, that Cooper has not met its burden of proving "exceptional circumstances," and thus, the plaintiffs should not be required to disclose the identities of attorney consulting-only experts. I recall telling Delaware counsel months ago that attorneys could fall within the definition of "covered person" without having to be attorney of record.
Superior Court Civil Rule 26 makes clear that the identities of consulting-only experts are not discoverable absent a showing of "exceptional circumstances." It appears that when the Special Discovery Master ruled on this issue, he was unaware that Cooper is unable to offer any evidence that trade secrets produced in discovery in any other cases against Cooper have ever been leaked to a Cooper competitor. Cooper's "exceptional circumstances" argument is premised on violations of protective orders in other cases, and its fear that plaintiffs' attorneys will use confidential information against Cooper in other cases. This falls short of "exceptional circumstances." Plaintiffs' Exceptions to Opinion and Order No. 3 of the Special Master are therefore GRANTED.
Super. Ct. Civ. R. 26(b)(4)(B); see also Pfizer v. Advanced Monobloc Corp., 1999 WL 743868, at *3 (Del. Super.).
Cooper's counsel conceded this at oral argument on July 16, 2012.
None of the plaintiffs' attorneys in this case were involved in those cases.
Phizer, 1999 WL 743868, at *3 (holding that the "identity, and other collateral information concerning an expert who is retained or specially employed in anticipation of litigation, but not expected to be called as a witness at trial, is not discoverable ... [absent] a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.") (quoting Fed. R. Civ. P. 26(b)(4)(B) (internal quotation marks omitted); see also In re Pizza Time Theatre Sec. Litig., 113 F.R.D. 94 (D. Ca. 1986). Cooper raises almost the exact same arguments rejected by the court in Pizza Time.
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IT IS SO ORDERED.
Very truly yours,
Jan R. Jurden
Judge
JRJ:mls cc: Prothonotary
Special Discovery Master