Jackson v. Tesla, Inc.

Background

The parties asked the court to resolve a discovery dispute concerning a non-testifying consultant used by plaintiffs’ expert, Dr. Singer. The consultant reviewed complaints of unintended acceleration in the National Highway Traffic Safety Administration’s Vehicle Operator Questionnaire database. Using criteria and instructions supplied by Dr. Singer, the consultant identified which complaints were “confirmed” claims within a larger group of “suspected” claims.

Dr. Singer relied on that identification in support of his opinion that Tesla vehicles had a higher rate of confirmed unintended-acceleration claims than other vehicles. Plaintiffs had not disclosed the consultant’s identity or the consultant’s work. During his deposition, Dr. Singer testified that he had not performed the identification work himself and could not answer several questions about how the consultant applied his instructions.

Tesla requested the consultant’s identity; a deposition of the consultant; documents and communications concerning the consultant’s work, including notes, worksheets, and spreadsheets; invoices; and a further deposition of Dr. Singer. Plaintiffs offered to provide some communications between Dr. Singer and plaintiffs’ counsel about the instructions, the spreadsheet containing the review results, and a further deposition of Dr. Singer, but objected to the other requested discovery.

Court’s analysis

The court applied Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, which requires disclosure of the facts or data considered by a testifying expert and the basis for the expert’s opinions. The court explained that this disclosure requirement is broad and covers material considered by the expert, not only material the expert ultimately relied on.

The court rejected plaintiffs’ characterization of the consultant’s work as merely administrative. Dr. Singer had supplied instructions but had not reviewed all of the suspected claims to determine whether the instructions were followed. He also did not know whether the consultant’s list included or excluded claims involving particular features or events. The court concluded that the consultant’s work formed part of the basis of Dr. Singer’s opinion and was among the facts or data he considered.

The court also concluded that Rule 26(b)(4)(D), which ordinarily protects facts known or opinions held by an expert employed only for trial preparation and not expected to testify, did not prevent the requested discovery. According to the court, plaintiffs had disclosed the consultant’s substantive work to Dr. Singer, and Dr. Singer’s opinion expressly relied on it. Without discovery into how the analysis was performed, Tesla could not test whether the consultant followed Dr. Singer’s instructions or explore the reliability of the underlying analysis.

Ruling

The court agreed that Tesla was entitled to discovery regarding the consultant’s work on which Dr. Singer relied. It ordered that Tesla may obtain the consultant’s identity; all documents and communications relating to or reflecting the database analysis, including the spreadsheet containing the results; and invoices for the analysis.

At Tesla’s request, plaintiffs must produce the consultant for a deposition about these matters and must produce Dr. Singer for a further deposition about the database analysis. Unless the parties agree otherwise, the consultant’s deposition is limited to three hours and Dr. Singer’s further deposition is limited to two hours. The parties must confer about a schedule for completing this discovery without disrupting the case-management deadlines set by the presiding judge. Judge Virginia K. DeMarchi signed the order.