Free Order on Motion to Compel - District Court of Federal Claims - federal

Case 1:05-cv-00296-FMA

Document 69

Filed 01/03/2007

Page 1 of 2

In The United States Court of Federal Claims
No. 05-296 T (Filed: January 3, 2007) __________ GRAPEVINE IMPORTS, LTD., A TEXAS LIMITED PARTNERSHIP, T-TEK, INC. A TEXAS CORPORATION, AS TAX MATTERS PARTNER, Plaintiffs, v. THE UNITED STATES, Defendant. _________ ORDER __________ On June 14, 2006, the court issued an opinion and order indicating, inter alia, that it would conduct an evidentiary hearing to consider the applicability of the six-year statute of limitations of 26 U.S.C. § 6501(3)(1)(A) to plaintiffs' 1999 tax year, and that expert testimony would be presented "as appropriate." On August 31, 2006, in preparation for this hearing, defendant designated Cheryl Kiger as its expert witness. On December 13, 2006, several weeks after Ms. Kiger's deposition, defendant withdrew Ms. Kiger as its expert witness. Defendant stated that it had learned during the course of Ms. Kiger's deposition that she had inadvertently received privileged documents, and that it was withdrawing her as a testifying expert in order to maintain the confidentiality of those documents. On December 20, 2006, plaintiff filed a motion to compel production relating to defendant's expert witness, seeking complete discovery of all "non-privileged" documents relied upon by Ms. Kiger in preparing her expert report. On December 29, 2006, this motion was opposed by defendant. RCFC 26(b)(4)(A) allows for discovery as to testifying experts, primarily to allow a party to prepare adequately for cross-examination at trial. See Advisory Committee Notes, Fed. R. Civ. P. Rule 26(b)(4) (1970) (construing the identical provisions of the Federal Rules of Civil Procedure). By comparison, RCFC 26(b)(4) (B) imposes severe limitations on the conduct of discovery regarding facts known or opinions held by experts "not expected to be called as a witness at trial," providing that such discovery may occur "only as provided in RCFC 35(b)" or upon "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." The prevailing decisional law suggests that because Ms. Kiger will no longer be testifying at the

Case 1:05-cv-00296-FMA

Document 69

Filed 01/03/2007

Page 2 of 2

upcoming evidentiary hearing, further discovery as to her ought to be governed by the limitations of RCFC 26(b)(4)(B). See Vincent v. Mortman, 2006 WL 2349448 (D. Conn. 2006); FMC Corp v. Vendo Co., 196 F. Supp. 2d 1023, 1045-47 (E.D. Cal. 2002); Ross v. Burlington N.R.R. Co. 136 F.R.D. 638 (N.D. Ill. 1991); In re Vestavia Assoc. Ltd. P'ship, 105 B.R. 680, 681 (M.D. Fl. 1989); Dayton-Phoenix Group v. General Motors Corp., 1997 WL 1764760 at *1-2 (S.D. Oh. 1997). Plaintiffs have failed to show any "exceptional circumstances" warranting the production of the remaining documents they seek, see Long Term Capital Holdings v. United States, 2003 WL 21269586 (D. Conn. May 6, 2003) (describing such "exceptional circumstances"). Indeed, because such documents are no longer needed to allow plaintiff to conduct cross-examination of Ms. Kiger, the court believes that the requested documents are wholly irrelevant to the issues to be considered at the upcoming evidentiary hearing, and, therefore, are not only outside the scope of proper discovery, see RCFC 26(b)(1), but also inadmissible, see Rule 401, Federal Rules of Evidence. In their moving papers, plaintiffs have also indicated that they may submit portions of Ms. Kiger's deposition testimony as rebuttal evidence, leading the court to conclude that plaintiffs might also seek to introduce Ms. Kiger's expert report. As Ms. Kiger will not be testifying as an expert witness, her deposition testimony undoubtedly includes inadmissible opinion testimony. In addition, the court finds that Ms. Kiger's deposition and expert report are inadmissible hearsay. See ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 154 (D. Conn. 2005). Indeed, the court believes that the admission of portions of these documents without Ms. Kiger's supporting testimony would be fraught with difficulties, has the potential for misleading the court acting as the trier of fact, and, as such, is unlikely to produce reliable and probative evidence. As such, these documents are also excludable under Rule 403 of the Federal Rules of Evidence. Accordingly, plaintiffs' motion to compel is hereby DENIED. In addition, plaintiffs are advised that the court will not permit the admission into evidence of Ms. Kiger's deposition testimony or expert report at the upcoming hearing. Given the unique circumstances of this matter, no expenses associated with opposing the motion may be recovered by defendant under RCFC 37(a)(4)(B). IT IS SO ORDERED.

s/ Francis M. Allegra Francis M. Allegra Judge

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