Submitted: August 2, 2013.
Craig A. Karsnitz, Esquire Timothy Jay Houseal, Esquire William E. Gamgort, Esquire Young Conaway Stargatt & Taylor, LLP Rodney Square.
John Anthony Wolf, Esquire John F. Morkan III, Esquire Anthony F. Vittoria, Esquire Ian I. Friedman, Esquire Ober, Kaler, Grime & Shriver A Professional Corporation.
James F. Lee, Jr., Esquire Michael F. Germano, Esquire Lee & McShane.
Frederick H. Schranck, Esquire Deputy Attorney General Department of Transportation.
Mary Page Bailey, Esquire Deputy Attorney General.
After consideration of the arguments and materials pertaining to Defendant AMEC Environmental and Infrastructure, Inc.'s ("AMEC") Motion to Compel Discovery, the Motion is GRANTED.
In this case, several opinions have been published,  and the information about this litigation will not be repeated. The present question concerns whether AMEC may depose Mark McNeilly, P.E., D.GE. ("McNeilly") of Golder Associates, Inc. ("Golder") in Newark, New Jersey, where McNeilly is principally employed.
Under the Pretrial Scheduling Order, dated June 15, 2012,  Plaintiff State of Delaware Department of Transportation ("DelDOT") identified four trial experts, including two Golder individuals, William F. Brumund, Ph.D., P.E., D.GE. ("Brumund") and Graham Elliott, Ph.D., C.Eng. ("Elliot"). Brumund and Elliott base their expert trial testimony on two Golder reports, prepared in 2011 and 2013. Brumund, Elliott, McNeilly, and Kerem H. Esin, P.E. ("Esin") signed these reports. The signature portions of these documents designated Elliott and Esin as senior consultants, McNeilly and Brumund as principals. McNeilly also affixed his seal as a Delaware registered professional engineer.
Brumund and Elliot have been deposed. In July 2013, AMEC no tified DelDOT that it sought to depose McNeilly. DelDOT opposed this, claiming McNeilly to be immune from discovery because, as opposed to Brumund and Elliot, McNeilly served only as DelDOT's "consultant" (i.e., non-testifying expert).
AMEC points out that the 2013 Report identifies Brumund, Elliott, Esin, and McNeilly as "the four key Golder Associates' individuals." Also, AMEC has received "thousands" of McNeilly's documents. Additionally, the reports were the work of a "team" that included McNeilly. AMEC argues that even as a non-testifying expert, McNeilly's role in the formation of the testifying experts' opinions, plus the fact that DelDOT and Golder did not screen McNeilly from the testifying experts, renders McNeilly vulnerable to AMEC's discovery request. Regardless of the label DelDOT attached to McNeilly, AMEC contends that exceptional circumstances under Delaware Superior Court Civil Rule 26(b)(4)(B) exist.
DelDOT notes that "McNeilly is an out-of-state, non-testifying consultant, who is neither an employee nor an agent of DelDOT." DelDOT first argues that AMEC's Motion is procedurally flawed because in order to depose McNeilly, AMEC should have subpoenaed him. Next, DelDOT argues that no exceptional circumstances under Rule 26(b)(4)(B) exist because all information that McNeilly could provide AMEC can be acquired from Brumund and Elliott. DelDOT asserts that AMEC's reliance on case law recognizing the discoverability of a non-testifying expert is misplaced because those cases did not discuss the issue presented in this Motion: the taking of a non-testifying expert's deposition, rather than production of documents. Also, DelDOT argues that if AMEC's Motion is granted, the scope of McNeilly's deposition should be ...