United States District Court, S.D. New York
In re CHICAGO BRIDGE & IRON COMPANY N.V. SECURITIES LITIGATION
SPECIAL MASTER ORDER #7
LORNA G. SCHOFIELD UNITED STATES DISTRICT JUDGE
about November 22, 2019, the Court referred a discovery
dispute regarding expert depositions to the Special Master
for resolution. In short, defendants ask that they be
permitted to depose plaintiffs' expert twice - once after
the initial report (so that their expert would have the
opportunity to review the deposition transcript prior to
submitting its responding report) and again after receipt of
a rebuttal report. Plaintiffs oppose this request and ask
that each side be limited to one deposition per expert. Both
parties submitted letter briefs to the Special Master on
December 5, 2019.
reviewed those letters, I conclude that defendants should be
permitted to depose the plaintiffs' expert after each
report (and the same opportunity is available to plaintiffs
if they wish to depose defendants' expert twice). Of
course, the second deposition should not be used to repeat
the questions asked at the first deposition but should only
cover new material addressed in the second report. My
decision is based on the concepts of efficiency and
fundamental fairness. While each deposition is an increased
expense it should also help to ensure that counsel and the
witnesses are well prepared for trial. Because
defendants' expert is replying to the first report it is
obvious that a deposition that explains the views expressed
by the witness in that report will be helpful in fashioning
that response. By the same token, once plaintiffs' expert
reviews the response, and learns the defendants'
expert's views for the first time, her rebuttal will
inevitably express new opinions. The opportunity to explore
those opinions prior to trial should increase the efficiency
of any trial presentation.
noted in the letter submitted by defendants' counsel,
other courts have reached a similar conclusion. See,
e.g., In re TFI-LCK (Flat Panel) Antitrust Litig., 2014
WL 12639392, at *2 (N.D. Cal. Dec. 10, 2014) (authorizing
second deposition after rebuttal report); Ice Corp. v.
Hamilton Sundstrand Corp., 2007 WL 1590845, at 2 (D.
Kan. May 30, 2007) (same after supplemental report);
Hamartie v. Louisville Ladder, Inc., 2007 WL 762032,
at *l-2 (M.D. Fla. July 17, 2007)(same); In re Dynamic
Random Access Memory (DRAM) Antitrust Litig., 2006 WL
3462580, at *1 (N. D. Cal. Nov. 29, 2006). Although the
Federal Rules of Civil Procedure did not recognize an
absolute right to depose an expert until 1993, earlier Rules
amendments certainly noted that expanded discovery of expert
witnesses would lead to a more efficient trial. See
Fed. R. Civ. P. 26(b)(4) 1970 Advisory Committee Note
recognizing that where expert testimony is central to the
claims, expanded discovery of expert witnesses often will
result in better cross-examination and rebuttal at trial.
Cf. Harris v. Untied States, 132 Fed.Appx. 183, 185
(9th Cir. 2005) ("The opportunity to review
the opposing party's expert witness's report does not
satisfy a party's right to depose that expert.").
I appreciate plaintiffs' point that depositions are not
always necessary and that parties can certainly agree not to
depose the experts. I also agree that the default rule is
that each witness may only be deposed once, absent leave of
court. Finally, it is true that the party seeking a second
deposition bears the burden of showing that the benefit of
doing so outweighs the burden and expense of allowing a
second deposition. See Plaintiffs' Dec. 5 letter
citing In re TFI-LCK, supra.
balance, defendants have met their burden. This is a very
complex cases with millions of dollars at stake and many
difficult issues on which expert testimony will be helpful.
Given the amount of resources already expended during the
discovery phase, an additional deposition or two is not a
great burden or expense when taken in context. For these
reasons, I conclude that a second deposition of the expert
following each report should be permitted.
 Plaintiffs cite one case that reached
the opposite conclusion. See Procongps, Inc. v.
Skypatrol, LLC, 2013 U.S. Dist. LEXIS 72702, at *2 (N.D.
Cal. May 22, 2013) (holding that "the purpose of expert
depositions is to develop cross-examination for trial or for
a Daubert motion, not too build a case for one's
own expert, and that two rounds of depositions is impractical