United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 66]
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
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.
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
STANDARD OF REVIEW
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. The trial court exercises broad discretion
when deciding to permit or deny discovery.
DISCUSSION A. Annual Income
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. 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
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.” 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.”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. 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.
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. Plaintiffs' request will be denied.
of Birth and Residence
privacy concerns, Shavelle refused to provide his date of
birth,  where he lives, whether he lives within
200 miles of his office in San Francisco,  or whether
anyone lives in his office. 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.” 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.
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 ...