Marine Petroleum Co. v. Champlin Petroleum Co.
| Citation | 206 U.S. App. D.C. 31,641 F.2d 984 |
| Decision Date | 30 May 1980 |
| Docket Number | No. 77-1345,77-1345 |
| Parties | MARINE PETROLEUM COMPANY, Appellant, v. CHAMPLIN PETROLEUM COMPANY et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Daniel Joseph, Washington, D. C., with whom Laurence J. Hoffman and Michael J. Madigan, Washington, D. C., were on brief, for appellant.
Richmond C. Coburn, St. Louis, Mo., of the bar of the Supreme Court of Missouri, pro hac vice by special leave of Court, with whom Donald B. Craven, Washington, D. C., was on brief, for appellee.
Before ROBINSON, MacKINNON and ROBB, Circuit Judges.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Marine Petroleum Company, a marketer of motor gasoline, sued Champlin Petroleum Company, a producer and refiner, in the Eastern District of Missouri for alleged violation of federal price regulations. During the pendency of the action, Marine sought an order from the District Court for the District of Columbia compelling Charles R. Owens, Champlin's independent consultant on energy matters, to answer questions propounded to him during the course of a deposition at Champlin's instance. In reliance upon Federal Civil Rule 26(b) (4)(B), 1 Champlin opposed the inquiry, asserting that Owens was an expert retained in anticipation of litigation, that he would not be called as a trial witness, and that resultantly he was not deposable on matters within the purview of his engagement by Champlin.
The District Court ruled that Marine could have orthodox discovery of facts known or opinions held by Owens prior to the time at which he began to devote his talents to the litigation precipitated by Marine, but not with respect to information developed thereafter. 2 Marine now appeals from this limitation on a deposition from Owens. 3 We affirm.
In March, 1975, Marine filed with the Federal Energy Administration (FEA) a complaint against Champlin and its parent company, Union Pacific Corporation, charging violations of petroleum price regulations 4 in sales of gasoline to Marine. In October of that year, Marine sued Champlin for damages in the District Court for the Eastern District of Missouri. 5 In the process of discovery, Marine propounded interrogatories to Champlin, one inquiring whether Champlin had ever procured the services of a consultant to facilitate compliance with FEA regulations. In response, Champlin disclosed that Owens had been retained to furnish reports and forecasts of changes in energy policy of interest to the energy industry generally and, upon occasion, economic analyses of interest to Champlin.
Marine subsequently deposed Owens in the District of Columbia. At the deposition session, objection was interposed to any and all questions relating to Owens' activities in Champlin's behalf. The contention was that Owens had been hired not only in the capacity mentioned but also in expectation of litigation over Champlin's observance of FEA regulations. It was further represented that Owens had from time to time conferred with Champlin's attorneys on that very subject, and on matters highly relevant to Marine's lawsuit. On this ground, and on advice of counsel, Owens refused to answer questions pertaining to his work for Champlin, or to produce any documents save those bearing on his initial hiring by Champlin.
Marine applied to the District Court for the District of Columbia for an order compelling discovery, and there the basic features of Owens' relationship with Champlin came to light. Owens' professional connection with Champlin began in the fall of 1974, when Champlin engaged his consulting firm. The firm obligated itself to follow events and analyze changing conditions impacting Champlin's interest and upon request to provide insights helpful to its planning and decisionmaking processes. 6 The parties settled on a monthly retainer for routine service and a guaranty of the firm's availability on a minimum of two and one-half days per month for special assignments, and to a schedule of additional fees for work done by particular firm personnel on days dedicated to Champlin. 7
For the first ten months, the relationship continued along these lines. Later, on July 7, 1975, however, after Champlin had received an "issue letter" from FEA informing it that it might be in violation of the petroleum price regulations as Marine had charged, Champlin decided to expand Owens' responsibilities to include assistance in regard to that matter. 8 For sometime onward, then, Owens wore two hats that of a general consultant and that of an expert engaged in preparation for litigation. 9
The District Court allowed inquiry into facts known and opinions held by Owens prior to his assignment to the Marine litigation, but barred interrogation of Owens on Champlin-related subjects beyond that point. 10 Marine appealed this partial denial of its discovery request. Prior to oral argument before this court, Marine further deposed Owens to the extent permitted by the District Court's order and now seeks to explore Owens' post-assignment knowledge. Our review of the District Court's action is of course limited correspondingly.
Discovery into facts possessed and opinions entertained by an adversary's expert is now regulated by the Federal Rules of Civil Procedure. The governing principles are set forth in Rule 26(b)(4), 11 a product of comprehensive revision and reorganization of the discovery process in 1970, 12 and the climax of an era of judicial disagreement and changing sentiment. 13 It is useful at the outset to briefly outline the current scheme of federal civil discovery as a part of the backdrop against which the claims in suit must be assessed. 14
Rule 26(b)(4) is in terms confined in operation to quests for "facts known and opinions held by experts, . . . acquired or developed in anticipation of litigation or for trial." 15 Thus, one who, though an expert, derives his information simply as "an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit . . . should be treated as an ordinary witness." 16 Rule 26(b)(4) does, however, apply full force to "discovery of information . . . obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party." 17 Subject to this limitation, as even the barest inspection will disclose, the rule "deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party who are not expected to be witnesses." 18
Experts within the first category are embraced by Rule 26(b)(4)(A). It specifies that "(a) party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." 19 A litigant is thus entitled automatically and without prior judicial approval to substantial though not complete discovery from the expert who expectably will be used at trial. And, "(u)pon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions 20 . . . concerning fees and expenses as the court may deem appropriate." 21
Experts who are not prospective trial witnesses are treated very differently, however. The relevant provision is Rule 26(b)(4)(B):
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) 22 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. . . . 23
As is apparent, Rule 26(b)(4)(B) imposes a partial though not a total ban on fact- or opinion-discovery from a nontestifying expert. It eschews a policy of categorical inaccessibility to such information in favor of a carefully circumscribed opportunity for discovery. To invoke its protection, the expert must have "been retained or specially employed by another party in anticipation of litigation or preparation for trial," 24 and the data sought to be discovered must have been "acquired or developed in anticipation of litigation or for trial." 25 Even if the involved material is of that nature, the party desiring discovery may still be able to pierce the shield of immunity. This feat is accomplished by establishing "exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." 26
Rule 26(b)(4)(B), however, "is concerned only with experts retained or specially consulted in relation to trial preparation." It thus 27
Such, then, is the general scheme of discovery from experts. Two additional considerations should be noted. One is the precondition, obtaining with respect to both testifying and nontestifying experts, that the material sought be "otherwise discoverable under the provisions of" Rule 26(b)(1). 28 The other is that a litigant who succeeds in securing discovery from an expert does not necessarily get a free financial ride. Save only with respect to experts regularly...
To continue reading
Request your trial
- United Steelworkers of America v. N.L.R.B.
-
Westmoreland v. CBS, Inc.
...and ruling on discovery matters, and appellate courts will reverse only for an abuse of discretion. Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 991 (D.C.Cir.1979) (cases cited). The inquiry generally is whether the district court acted arbitrarily or fancifully in denying ......
-
Tellabs Operations, Inc. v. Fujitsu Ltd.
...employment as members of the investigation team or in the course of their regular duties."); Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 993 (D.C.Cir. 1979)("The rule's tacit acknowledgement of the necessity of meticulous preparation has equal force whether the expert is o......
-
Adkins v. Morton
...whose knowledge and views lie within the ambit of Rule 26(b)(4) and those whose do not. E.g., Marine Petroleum Co. v. Champlin Petroleum Co., 206 U.S.App.D.C. 31, 641 F.2d 984 (D.C.Cir. 1979); Grinnell Corp. v. Hackett, 70 F.R.D. 326 (D.R.I. 1976); accord, In re Application for Water Rights......