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Tate v. United States

United States District Court, D. Alaska

December 5, 2016

William Tate, et al., Plaintiffs,
v.
United States of America, et al., Defendants.

          ORDER AND OPINION [RE: MOTION AT DOCKET 66]

          JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT

         I. MOTION PRESENTED

         At docket 66 plaintiffs William Tate, et al. (“Plaintiffs”) move for an order compelling answers to certain deposition questions pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a). Plaintiffs' motion is supported by a memorandum at docket 67 and an affidavit of counsel at docket 75. Defendant United States of America (“United States”) opposes Plaintiffs' motion at docket 82. Plaintiffs reply at docket 85. Oral argument was not requested but would not assist the court.

         II. BACKGROUND

         The factual background of this case is set out in the court's order at docket 65 and need not be repeated here. Suffice it to say for present purposes that the United States' expert, Robert Shavelle, Pd.D. (“Shavelle”), refused to answer numerous questions at his deposition. Plaintiffs now move for an order compelling him to answer these questions.

         III. STANDARD OF REVIEW

         If a deponent refuses to answer questions at her deposition, the interrogating party may move under Rule 37(a) for an order compelling discovery. The deponent has the burden to clarify, explain, and support her objections, and the ultimate burden of showing that she should not be compelled to answer the disputed questions.[1] The trial court exercises broad discretion when deciding to permit or deny discovery.[2]

         IV. DISCUSSION A. Annual Income

         Shavelle refused to provide the income that he or his company, Strauss & Shavelle, Inc., earns annually from litigation work, stating that he already produced sufficient information about the income he and his company has earned in this case and that providing the company's actual income was prohibited by a confidentiality agreement and by company policy.[3] Shavelle did testify, however, that all of his earned income was from his company and “roughly 90 percent of the revenue to the company is from consulting in a litigation setting.”[4]

         Plaintiffs seek an order compelling Shavelle to provide his and his company's annual income from litigation work, arguing that this discovery is appropriate because it can show “positional bias.”[5] Courts are split as to whether this type of discovery should be allowed. Plaintiffs cite a number of state-law cases that hold that a party should be allowed to inquire into whether an expert is biased because he earns a significant amount of income from testifying in court, and thus is a “professional witness.”[6]Numerous federal courts, however, have held that the expert's bias can be adequately revealed by requiring the expert to disclose the proportion of his income that is derived from litigation activities.[7] These courts recognize that the amount of an expert's litigation income is relevant to the jury's bias analysis, but the value of that evidence is slight when the expert has already disclosed the proportion of his income that comes from litigation, and is typically outweighed by the potential harms from allowing the discovery-namely, confusing and distracting the jury and burdening the expert.[8]

         The court finds the latter line of authority more persuasive in the context of the case at hand. If Plaintiffs wish to portray Shavelle as a biased professional witness because he derives a significant amount of his income from litigation fees, they have sufficient information with which do so. Shavelle testified that nearly all of his company's income comes from litigation, and he earns all of his income from his company. Knowing the overall amount of Shavelle's litigation income would not significantly assist the jury's evaluation of Shavelle's bias. The slight probative value of this evidence is outweighed by the potential for confusing or distracting the jury and burdening Shavelle.[9] Plaintiffs' request will be denied.

         B. Date of Birth and Residence

         Citing privacy concerns, Shavelle refused to provide his date of birth, [10] where he lives, whether he lives within 200 miles of his office in San Francisco, [11] or whether anyone lives in his office.[12] Plaintiffs argue that Shavelle's date of birth is relevant because having that information would make it easier for their investigators to conduct background research on him. The United States responds that Shavelle's date of birth is irrelevant because “no institution or organization or former employer is going to release personal information . . . to an attorney or his investigators just because they have a person's date of birth. Discovery for this type of sensitive information requires signed releases/authorizations, subpoenas, and records depositions.”[13] Because the record is devoid of any evidence showing that a competent investigator would be impeded by a lack of the birth date, the United States' relevancy argument is persuasive. Plaintiffs' request will be denied.

         With regard to the remaining information, Plaintiffs argue that if they can show that Shavelle works out of his home and not in his company's San Francisco office, this will somehow discredit Shavelle. The court agrees with the United States that the facts Plaintiffs seek are irrelevant to the ...


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