Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—C.D. Ill.: Dish Network must disclose to DOJ information its expert witnesses acquired in prior employment, (Oct 11, 2013)

By Tobias J. Gillett, J.D., LL.M.

In a Department of Justice and state action against Dish Network, L.L.C. over alleged violations of the FTC’s Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA), and state telephone solicitation statutes, Dish must disclose information two of its expert witnesses had acquired in their previous work for Dish that related to the subject matter of their expert reports, the federal district court in Springfield, Illinois has ruled (U.S. v. Dish Network, L.L.C., October 9, 2013, Myerscough, S.).

The U.S. Department of Justice and the Attorneys General of California, Illinois, North Carolina, and Ohio had filed a lawsuit asserting that Dish violated the TSR, the TCPA, and state statutes prohibiting certain forms of telephone solicitations. The plaintiffs filed a motion seeking to compel disclosure of information provided to Ken Sponsler and John Taylor, two of Dish’s expert witnesses, in preparing expert reports for Dish, and to reopen Sponsler’s deposition.

The magistrate judge (1) ordered Dish to make Sponsler available for an additional deposition, during which the plaintiffs could inquire about facts and data Sponsler had learned during prior experience consulting for Dish and other businesses; (2) overruled Dish’s claim of privilege with respect to the identity of businesses with which Sponsler worked and the facts and data Sponsler learned from his experience and considered in formulating his opinions; (3) directed Dish to disclose any additional documents related to Sponsler’s prior experience with Dish that contain facts and data that Sponsler considered in formulating his opinions; and (4) ordered Dish to disclose facts or data that Dish’s Resource Manager for Customer Service Center Administration had supplied to Taylor and that Taylor had considered in preparing his opinions.

However, the magistrate found that Federal Rule of Civil Procedure 26(b)(4) “did not waive the attorney client privilege” with respect to 10 documents that the plaintiffs claimed Dish had to disclose due to using Sponsler and Taylor as expert witnesses, and that one other document remained privileged because the work-product privilege was not waived. The magistrate reserved ruling on 11 additional documents because they had not been submitted for review.

The plaintiffs filed objections to the magistrate’s opinion, contending that Dish should have to disclose all information an expert received during Dish’s prior retention of the expert if the information related to the subject matter in the expert’s report, and that Dish should produce all 22 withheld documents and any other information identifying facts, data, or assumptions Taylor used in performing an analysis of Dish’s call records.

Information from prior work. The court concluded that the plaintiffs were entitled to all relevant facts and data on the subject matters covered by Sponsler’s expert report that Sponsler acquired through his prior work for Dish. The court rejected Dish’s contention that it only asked Sponsler to provide an opinion on characterizations in a plaintiffs’ expert’s report of relationships among parties involved in the telemarketing process and the bearing those characterizations had on Dish’s business relationships, and that Dish had limited Sponsler to reviewing the plaintiffs’ expert’s report and the materials the plaintiffs’ expert had relied on for her opinion. The court observed that Sponsler’s report “appeared to do much more” than provide the opinion Dish allegedly requested. The plaintiffs argued that the additional information in the report must have come from Sponsler’s prior work for Dish.

The court found that the magistrate’s interpretation of FRCP Rule 26(a)(2)(B)(ii) as including only materials Sponsler admitted he considered and the materials Dish or its retailers specifically gave Sponsler to review was “clearly erroneous and contrary to law.” Dish relied on the Seventh Circuit’s opinion in Fidelity National Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745 (2005), for the proposition “that a testifying expert need only disclose the materials given to him to review in preparing his testimony.” However, the court observed that “the issue in Fidelity was whether an expert must preserve materials given to him even if he did not rely on them in formulating his opinion,” and that the Seventh Circuit had not considered whether Rule 26(a)(2)(B)(ii) also included “facts and data given to a testifying expert during a prior employment/retention where the prior matter involved the same subject matter covered by the expert’s report.”

The court found that “[a] court should not solely credit the subjective representations of the expert when determining what the expert considered.” The court ordered Sponsler to answer deposition questions regarding his prior work for Dish and its retailers, and that the plaintiffs could submit a request for production of documents relating to that prior work that they believed were sufficiently related to the opinions Sponsler expressed in his report.

Prior analysis of call records. The court also found that Dish had to disclose facts and data it had given to Taylor when he performed analyses of Dish’s call records in 2008, as well as information related to his 2012 analysis. The magistrate had concluded that Dish did not have to disclose information related to the 2008 analyses because (1) they involved completely different data sets; (2) Taylor had not considered the prior analyses in formulating the 2012 analysis; (3) although the plaintiffs might be entitled to the prior analyses as cross-examination or impeachment material, they were not subject to disclosure under Rule 26(a)(2)(B); and (4) the 11 documents the magistrate reviewed were privileged.

The court found the magistrate’s conclusions were again “clearly erroneous and contrary to law.” The analyses did not cover completely different data sets because both analyses considered call records from October 2007. Moreover, Taylor had testified that he had used his prior experience analyzing Dish’s call records to inform his analysis in his expert report. Further, “materials that an expert considered, even if he did not rely upon them, may contain effective ammunition for cross-examination.”

Privilege. Finally, the court agreed with the magistrate that 10 of the 11 documents the magistrate determined were privileged remained subject to privilege because they were “not communications that (1) relate to compensation; (2) identif[ied] facts or data that the expert considered in forming his opinions; or (3) identif[ied] assumptions that the attorney provided to the expert and that the expert relied on in forming his opinions.” However, the eleventh document was a draft document purportedly prepared by Taylor in 2010 about telemarketing compliance guidelines employed by Dish. Since it involved the same subject matter as that contained in Taylor’s report, it had to be disclosed.

Three of the eleven documents not previously reviewed by the magistrate did not have to be disclosed because they did not “contain facts, data, or assumptions as those terms are used in Rule 26(b)(4)(C).” Five other documents had to be disclosed because they related to Taylor’s 2008 analyses. The court could not determine whether three additional documents relating to Sponsler’s prior work for Dish had to be disclosed until the plaintiffs had obtained more information about that prior work.

The case is No. 09-3073.

Attorneys: Albert N. Shelden for United States of America. Catherine Emily James (Kelley Drye & Warren LLP) for Dish Network L.L.C.

Companies: Dish Network, L.L.C.

Cases: ConsumerProtection Privacy IllinoisNews