Free Memorandum - District Court of Arizona - Arizona

EXHIBIT A
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joseph G. Adams (602) 38Z»6207 usvmmawrun I
i¤·**··¤·“M—·*·¤¤·= December 12, 2005 3.
VIA FACSIMILE (480-429-3100) AND MAIL
Kevin Breger
Beus Gilbert PLLC ` at
4800 North Scottsdale Road, Suite 6000 ·
Scottsdale, AZ 85251-7630 `
Re: Munn, ei al. v. GTCR Golder Ruuner, L.L. CC, et ol.
Dear Kevin: I
Thank you for your December 7, 2005 letter regarding Tom Gilman’s assertion of _;
privilege for his work as plaintit`fs’ designated expert witness.
In Mr. Gilman’s expert deposition, you instructed him not to answer questions regarding ·
comrmmieations with counsel on the topic of his expert opinions and testimony. We also r.·
understand that plaintiffs are not willing to produce the handwritten draft of Mr. Gi1rnan’s _
summary of his expert opinions, which he testified that he delivered to an employee of your firm. ,
At the deposition, you told defense counsel that you were aware ot` cases supporting Mr. , ·
Gilman’s assertion of privilege regarding his expert testimony and opinions. You also indicated Q
that you would provide us with citations to that authority. In my letter of December 5, I repeated ·
this request and asked you to provide us with authority supporting plaintiffs' position. »
Your response of December 7 did not contain any authority to support Mr. Gilman’s l
assertion of privilege. Instead, you cited to Rule 26(a)(2)(B), which concerns the requirement of Y
an expert to prepare and sign a report. This portion of Rule 26 has nothing to do with any _
applicable privilege and does not support your position. . '
In fact, there is clear authority holding that a party who also serves as an expert witness l
has waived all privilege regarding his expert opinions and testimony. See Kooima v. Zackly? `
1m’l, Inc., 209 F.R.D. 444, 447 (D.S.D. 2002) (“Because Plaintiff has designated himself as an _
expert, therefore, all documents and information disclosed to him (including correspondence _ ‘
trom his attorneys) in connection with his anticipated expert testimony are discoverab1e.");
Mushroom Assocs. v. Monterey Mushroom; Inc., No. C-91 -1092, 1992 U.S. Dist. LEXIS 20640, _ E
Case 2:O2—cv-02099-RCB Document 308-2 Filed O1/06/2006 Page 2 Oi 3 g
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Kevin Breger · l
December 13, 2005 , _:
Page 2 · L
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*7 (N.D. Cal. Aug. 21, 1992) (naming of an employee as an expert results in a waiver of
privilege that “applies to those documents which the employee considered when fomrulating his i
expert testimony”); Shocker v, Superior Court, 4 Cal. Rptr. 3d 334, 339-40 (Cal. Ct. App. 2003)
(ifa party "testiiies as an expert (such as by stating his opinion in a declaration or ata <
deposition) the privilege is waived"). ,
We ask that you review this authority and that you reconsider your assertion of privilege '
for Mr. Gilman’s expert opinions and testimony. Please let us know by close of business on _j
Thursday, December 15, 2005 if plaintiffs are willing to drop their assertion of privilege. if not, ·.
we will plan on contacting Judge Broomtield°s chambers to arrange for a telephonic hearing on _‘
this issue- 1 ,.
We look forward to hearing from you. `
Very truly yours,
Snell & Wilmer
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Joseph G. Adams _ {
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cc: Michael J. Faris is
Merrick B. Firestone 3 Q
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