Opinion
Civil Action 19 Civ. 7541 (ALC) (SLC)
11-04-2022
BERNSTEIN, et al., Plaintiffs, v. CENGAGE LEARNING, INC., Defendant.
ORDER
SARAH L. CAVE, United States Magistrate Judge.
Pursuant to the telephonic conference held today, November 4, 2022 (the “Conference”), the Court orders as follows:
1. For the reasons stated on the record during the Conference, Cengage's motion to compel further deposition testimony of non-party witness Juli Saitz (“Ms. Saitz”) (ECF No. 162 (the “Motion”)) is DENIED WITHOUT PREJUDICE. While, pursuant to Federal Rule of Civil Procedure 26(b)(4)(D), Cengage would have been entitled to ask Ms. Saitz about information she acquired or opinions she formed before Plaintiffs engaged her as a non-testifying expert, see Nelco Corp. v. Slater Elec. Inc., 80 F.R.D. 411, 416 (E.D.N.Y. 1978); Atari Corp. v. Sega of Am., 161 F.R.D. 417, 421 (N.D. Cal. 1994) (“Therefore, as the parties substantially agree, an expert may be deposed concerning information acquired or opinions formed prior to his employment by a party.”), Cengage had an opportunity to ask such questions during her deposition and has failed to demonstrate why, in the face of Plaintiffs' counsel's objections, it did not formulate questions designed to solicit the information to which Cengage was entitled. Furthermore, Cengage has not persuaded the Court that, even if Ms. Saitz had additional information acquired or opinions formed before Plaintiffs engaged her as a non-testifying expert, how such information and opinions are pertinent to class certification. To the extent Cengage were to determine that such information and opinions were pertinent to the merits of Plaintiffs' claims, they may renew their Motion at the appropriate time. Accordingly, the Motion is DENIED WITHOUT PREJUDICE.
2. The parties shall order a transcript of the Conference and file it on the docket. The parties shall complete the annexed transcript request form and submit one request to: etranscripts@nysd.uscourts.gov, by Monday, November 7, 2022.
SO ORDERED.