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Bailey - P.V.S. Oxides, L.L.C. v. S and K Packaging

June 15, 2009

BAILEY - P.V.S. OXIDES, L.L.C., AND BAILEY - P.V.S. OXIDES (DELTA), L.L.C., PLAINTIFFS,
v.
S AND K PACKAGING, INC. DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER OF COURT

Bailey*fn1 generates and sells iron oxide. The iron oxide is shipped in industrial bags known as Flexible Intermediate Bulk Containers ("FIBCs"). In December 2007, Bailey ordered about 6,000 FIBCs from Defendant S & K Packaging Inc. ("S & K"). S & K, in turn, placed an order from its vendor in China. The bags were shipped to Bailey, but rapidly deteriorated. According to Bailey, they were not properly UV protected nor were they sufficiently durable. The iron oxide was damaged and the ground upon which the FIBCs sat was contaminated. Bailey claims it incurred substantial cost (approximately $200,000) in clean up and losses associated with the defective FIBCs.

S & K contacted its insurance company, EMC Insurance, regarding Bailey's loss. EMC sent its adjuster, Brent O'Malley, to Bailey's site to conduct an investigation. O'Malley apparently arrived on site before the iron oxide was cleaned up and hauled away. O'Malley and EMC eventually retained an independent adjuster, Michael Hill, from Crawford & Company, to investigate the claim and property damage.

Bailey also forwarded two of the FIBCs to S & K. S & K sent one to the vendor in China and sent one to Ten-E Packaging Services for testing. S & K instructed Paul Mathison of Ten-E to determine "who was at fault" for the defective bags. Ten-E routinely did testing of S & K's FIBCs. Mathison ultimately authored a report on the bags.

Bailey wants to depose both O'Malley and Mathison. S & K seeks a Protective Order with respect to both individuals. See Docket No. [46]. As to O'Malley, S & K reasons that all discoverable information has been turned over and that a deposition would serve only to be cumulative and therefore done with the intent to harass. Further, S & K urges, any information not already turned over by O'Malley, would consist of O'Malley's mental impressions, conclusions, opinions or legal theories of S & K's case and would therefore be protected as privileged information under Federal Rule of Civil Procedure 26(B)(3)(B). As to Mathison, S & K urges that he is a non-testifying expert and that Bailey has not demonstrated the "exceptional circumstances" required under Federal Rule of Civil Procedure 26(b)(4)(B) for a deposition.

After careful consideration, and for the reasons set forth below, I reject both of S & K's arguments.

Analysis

(A) O'Malley

As stated above, the record before me indicates that O'Malley works for S & K's insurer. He is an adjuster, not an attorney. He was on site at the Bailey facility and completed his own investigation. I recognize that he may have tendered all reports and underlying documents to Bailey. Nevertheless, Bailey is entitled to depose him about facts relevant to the report, about his interaction with witnesses and with Plaintiff, about conversations he had while he was on site, and about the source of information in his file. Simply stated, S & K is entitled to discover the facts known by O'Malley. With respect to S & K's contention that Bailey will attempt to discover "privileged" information, it has an adequate remedy, it can object.

(B) Mathison

S & K urges that Mathison qualifies as a non-testifying expert who was employed only for trial preparation and, as such, should be protected by the dictates of Federal Rule of Civil Procedure 26(b)(4)(B). The text of the Rule reads:

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on ...


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