The Aleut Corporation v. Dunlap Towing Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE ALEUT CORPORATION,
Plaintiff,
v.
DUNLAP TOWING COMPANY,
Defendant.
Case No. 3:20-cv-00069-SLG
IN ADMIRALTY
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL
THIS MATTER having come before the Court upon Plaintiff The Aleut
Corporation’s Motion to Compel Production of Documents in Response to
Subpoena on Delphi Maritime LLC (Docket 20), Dunlap Towing Company’s
Opposition to the Motion to Compel (Docket 22), and Plaintiff’s Reply (Docket 24),
and the Court having been fully advised of the issues presented, the Court denies
the motion to compel for the reasons set forth herein.
This case arises from a dock allision that occurred on March 18, 2018.
Shortly after the allision, Defendant retained Delphi Maritime, a third party marine
surveyor, to prepare a field survey report assessing the damage. In 2019,
Defendant voluntarily gave a copy of the field survey report to Plaintiff upon
Plaintiff’s request. It appears that experts for each side have relied on the Delphi
field survey report in their damages assessments. In 2021, Plaintiff sought to
depose the Delphi surveyor, Jeffrey Slesinger. Plaintiff first subpoenaed all of Mr.
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Slesinger’s records. Delphi produced all of its records except for an early 2020 e-
mail sent from a Dunlap representative to its insurance broker on which Mr.
Slesinger had been copied. That e-mail is the subject of the instant motion to
compel.
Prior to the deposition of Mr. Slesinger, the parties discussed by e-mail the
conditions for the deposition. Defendant identified Mr. Slesinger as a “non
testifying expert” with respect to his 2018 field survey report, indicating that Mr.
Slesinger “did not view the dock or its damage.”1 As such, Defendant sought
confirmation that Plaintiff would “pay for Mr. Slesinger’s time during the deposition
as provided in CR 26[(b)(4)]E.” Plaintiff confirmed this, and the deposition
proceeded for approximately four hours; it appears that deposition focused on the
basis for Mr. Slesinger’s opinions set out in the 2018 field survey report.
The Court finds that the 2018 field survey report was prepared in anticipation
of litigation. The fact that Mr. Slesinger has not been retained by Delphi for
additional work after this case commenced in 2020 does not alter the fact that he
provided expert opinions about relevant facts in 2018 in anticipation of this
litigation.2 As such, Mr. Slesinger is a non-testifying expert. And while Plaintiff
1 Docket 21-7 at 1.
2 At his deposition, Mr. Slesinger testified that he had not been retained as “any sort of expert in
this case.” Docket 21-9 at 3. This case did not yet exist in 2018. Clearly, Mr. Slesinger had
been retained as an expert surveyor in 2018 and has provided his expert opinions to both
parties that he formulated at that time.
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may have made a case for a substantial need for the field survey report itself had
Defendant not voluntarily provided it to Plaintiff,3 the e-mail is protected work
product and need not be produced. The Court disagrees with Plaintiff’s assertion
that by producing the field survey report, Defendant waived the non-testifying
expert privilege for all documents in Mr. Slesinger’s possession. “While a party
cannot shield the material which it has already disclosed or on which its witnesses
rely, where the disclosure is limited, the waiver applies only to the matters
disclosed or relied upon.”4 In short, “[u]undisclosed work product remains
protected.”5
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion
to Compel at Docket 20 is DENIED.
IT IS FURTHER ORDERED that Plaintiff The Aleut Corporation compensate
Jeffrey Slesinger for his time during the June 9, 2021 deposition at his hourly rate
of $250 per hour pursuant to Federal Rule of Civil Procedure 26(b)(4)(E)(i).
IT IS FURTHER ORDERED that Defendant is entitled to reimbursement
from Plaintiff of 50% of the cost incurred in developing the field survey report on
which its expert relies pursuant to Rule 26(b)(4)(E)(ii), as the Court finds that that
3 See Civil Rule 26(b)(4)(d)(ii).
4 See Murray v. S. Route Mar., S.A., Case No. C12-1854RSL, 2014 WL 1671581, at 2 (W.D.
Wash. Apr. 28, 2014).
5 Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018,1026 (9th Cir. 2012).
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constitutes “a fair portion of the fees and expenses [Defendant] reasonably
incurred in obtaining the expert’s facts and opinions” and then sharing them with
Plaintiff.
DATED this 26th day of July, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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