Opinion
No. C 06-04435 CRB.
April 10, 2007
ORDER
Plaintiff has filed a motion to compel the production of all materials generated or reviewed by Dr. David Gulley and Dr. Steven Stanton, two expert witnesses whose testimony has been offered in support of Defendant's pending motion for partial summary judgment. On March 30, 2007, this Court entered an order requiring Defendant to disclose some of these materials and to submit other materials for in camera review. See Docket No. 211 (redacted); Docket No. 212 (unredacted). This second set of materials relates to the so-called "Grant-Date Probability Project" and the "Money-Left-on-the-Table Project," both of which were conducted by Dr. Gulley in connection with this case.
Having reviewed the materials, the Court concludes that the materials related to the "Grant-Date Probability Project" are sufficiently related to Dr. Gulley's testimony that their disclosure is required. Plaintiff's motion to compel is therefore GRANTED as to these materials. The Court further concludes, however, that the materials related exclusively to the "Money-Left-on-the-Table Project" are not related to Dr. Gulley's testimony. Plaintiff's motion to compel is therefore DENIED as to these materials.
Defendant argues that none of the documents or materials withheld actually relate to Dr. Gulley's opinion, which is based almost exclusively on an analysis of the various financial statements, disclosures, and restatements issued by Brocade. The rules of discovery, however, require parties to disclose more than just the materials on which an expert actually relies. Instead, an expert's proponent must hand over "the data or other information considered by the witness in forming the opinions." Fed.R.Civ.P. 26(a)(2)(B). See also B.C.F. Oil Refining, Inc. v. Consol. Edison Co. of New York, 171 F.R.D. 57, 61-62 (S.D.N.Y. 1997) (stating that an expert's proponent need not produce " documents having no relation to the expert's role as [witness]" (emphasis added)).
This Court cannot conclude that the documents related to the "Grant-Date Probability Project" are unrelated to Dr. Gulley's testimony. To the contrary, these materials relate directly to the scope of the alleged misrepresentation that he claims had an immaterial effect on the share of Brocade's stock price. It is at least arguable that the scope or nature of an alleged misrepresentation is relevant to the question of whether the misrepresentation was material. In his testimony, Dr. Gulley never asserts that misrepresentations about non-cash expenditures such as employee stock options can never be material to a reasonable investor. Thus, although it is true that Dr. Gulley's proposed testimony does not assert any view about the actual scope of any misrepresentations that might have occurred, it is also not unreasonable to think that his consideration of that subject could affect his view on how a reasonable investor would have viewed Brocade's alleged non-disclosures. Dr. Gulley conducted an exhaustive analysis about the potential scope of alleged backdating before offering his testimony on the question of whether investors founds such backdating relevant to their decision about whether to buy or sell shares of stock in the company. Plaintiff is therefore entitled to review these materials, too, and to ask Dr. Gulley why they did or did not influence his view on the issue of materiality. United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995) (noting that the purpose of civil discovery is to allow an adversary "to expose whatever weaknesses, unreliabilities, or biases might infect the opinions of testifying experts called by [an] adverse party," and holding that discovery "should not be limited to documents relied on by the expert in support of his opinions, but should extend to documents considered but rejected by the testifying expert in reaching opinions").
The Court therefore holds that Defendant must disclose the following materials: (1) all withheld materials that relate exclusively to the "Grant Date Probability Project," (2) all withheld materials that relate both to the "Money-Left-on-the-Table Project" and the "Grant Date Probability Project," and (3) all redacted materials, but only insofar as they set forth Dr. Gulley's or Navigant's analysis of the "Grant Date Probability Project." The Court holds that materials relating exclusively to the "Money-Left-on-the-Table Project," whether redacted or withheld entirely, are irrelevant to the experts' testimony and are therefore protected by the work-product privilege. The Court further holds that the material redacted from a document described as a "meeting agenda" (REYES-SEC 00022467-00022468) is irrelevant to the experts' testimony and therefore need not be disclosed.
Defendant shall make his production to Plaintiff not later than Thursday, April 12, 2007. Plaintiff's opposition shall be filed not later than Wednesday, April 25, 2007. Defendant's reply shall be filed not later than Friday, May 4, 2007. Defendant's motion for partial summary judgment shall be heard, as previously scheduled, on Friday, May 11, 2007.
IT IS SO ORDERED.