Expert Opposes Request for Valuation Reports in Other Easement Cases

TONY D. TOWNLEY AND ELIZABETH A. TOWNLEY,
Plaintiff and Counterclaim Defendants,
v.
UNITED STATES OF AMERICA,
Defendant and Counterclaimant.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION

NON-PARTY BURGEX'S MOTION FOR A PROTECTIVE ORDER

COMES NOW, Non-Party Burgex Mining Consultants by and through undersigned counsel for the limited purpose of responding to the Government's Motion to Compel Discovery from Burgex Mining Consultants.

I. Expert Burgex Mining Consultants should not be compelled to respond to the United States' untimely request.

Non-Party Burgex is in a unique and unusual posture, hired by Plaintiffs first in anticipation of trial and second as an expert witness, but also subpoenaed by the government as a “non-party” on April 28, 2023, prior to Burgex being disclosed as an expert on May 31, 2023. The government has made no objection to Burgex's disclosure as an expert and has further acknowledged Burgex's status as an expert witness by communicating with Burgex through Plaintiffs' counsel on all topics involving discovery and depositions. Burgex was further deposed in this matter without its counsel present because the deposition was conducted as an expert deposition.

The government has suggested that its point of contact for correspondence involving Burgex has been inconsistent or shifted in a way that has disadvantaged the government. This is not the case. The Government refused to discuss the subpoena with Plaintiff's counsel. As such, Burgex produced its responses and objections to the subpoena issued to Burgex, through its counsel on May 26, 2023. Burgex's counsel was not contacted concerning Burgex's responses and objections to the subpoena until September 13, 2023. See Exhibit A attached hereto.

Burgex understands that the Plaintiffs and the government (“Parties”) agreed to treat Burgex as an expert in this matter, and as such, the government corresponded with Plaintiffs' counsel concerning Burgex as an expert. After the government's attempt to get discovery from Burgex as an expert through Plaintiffs' counsel failed, the government resorted to treating Burgex as a non-party — reaching out to Burgex's counsel and demanding discovery responses without a meet-and-confer and with months passing from the original responses and objections being delivered by Burgex to the government.

The Motion to Compel violates the order of this Court closing expert discovery on September 21, 2023. The documents sought were mistakenly disclosed as part of the expert reports in this case. The Government wafts between “fact” and expert designation when it benefits the Government. However, both the documents sought and the Government's claimed relevance relate to Burgex in its expert designation.

The documents the government seeks are for third parties, not part of this litigation, that are subject to confidentiality and non-disclosure agreements with Burgex's clients. These documents are not readily available to be disseminated to the government and will take considerable time to locate, review the initial agreement of why and how they were produced, and to execute disclosure based on the agreement Burgex.

On this basis alone, because the government's requests were made of non-party, expert witness Burgex after the close of Expert Discovery in this case, Burgex should not be compelled to produce additional documentation in response to the untimely request.

II. The Rule 26(b) factors do not weigh in favor of disclosure.

“Although Rule 26(b) applies to discovery of non-parties as well as parties in a suit, non-party status is considered by the court in weighing the burdens imposed in providing the requested discovery.” Cytodyne Techs., Inc. v. Biogenic Techs., Inc., 216 F.R.D. 533, 535 (M.D. Fla. 2003) (citing American Standard Inc. v. Pfizer Inc., 828 F.2d 734 (Fed.Cir.1987) (affirming district court's restriction of discovery where non-party status “weigh[ed] against disclosure”); American Electric Power Company, Inc. v. United States, 191 F.R.D. 132, 136 (S.D.Oh.1999) (status as a non-party is a factor that weighs against disclosure); Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 179 (E.D.N.Y.1988) (non-party status is a significant factor in determining whether discovery is unduly burdensome).

In general, the scope of discovery is limited to “nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Therefore, “the court must limit the . . . extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2).

A. The burden imposed on Burgex significantly outweighs the Government's need for these documents for this case.

“The undue burden analysis requires the court to 'balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it.' Several factors have been identified as pertinent to the analysis, including the 'relevance of the information requested' to the underlying litigation and the 'burden [that would be] imposed' by producing it.” Jordan v. Comm'r, Mississippi Dep't of Corr., 947 F.3d 1322, 1337 (11th Cir. 2020) “The status of the subpoena recipient as a non-party is also a factor that can weigh against disclosure in the undue burden inquiry.” Id.

The documents sought by the government in this Motion to Compel are confidential reports prepared for third party private clients of Burgex, not related to the Plaintiffs. Disclosure of these documents would impose an immense burden on Burgex and provide little to no value to the Government in light of this case.

i. Production of the documents sought would pose an immense burden on non-party Burgex.

First, compiling these reports alone would be burdensome as the reports themselves as well as the necessary attachments are not stored together in a single location and various working drafts may exist. Gathering the final version of each report along with the necessary attachments will take a matter of days for Burgex employees to complete, which will result in significant expense and delay to Burgex's operations.

Second, an even more significant burden on Burgex, would still come after compiling the records sought, in examining the contracts and agreements governing disclosure of each of these records with each of the clients of Burgex to who the reports correspond to, as many if not all are subject to non-disclosure, confidentiality, and notice provisions. Review of these agreements and efforts to comply with these agreements will take a matter of weeks for Burgex employees and will result in significant expense and delay to Burgex's operations.¹

Finally, disclosure of these confidential documents will further burden Burgex for years to come as the records prepared for these individual clients who are entirely unrelated to this action, will undoubtedly create strife with clients and negatively impact Burgex's relationships with clients and Burgex's reputation.

The burden and hardship that would be imposed on Burgex upon production of the documents sought by the government significantly outweighs any potential need the government may have for the documents in this case.

ii. The documents are irrelevant to this matter and not needed for this case.

The government alleges that these documents are necessary to establish the “qualifications of and methodologies used[.]” ECF 53 at 6. However, the government has taken Burgex's expert deposition in this case and been provided all documents Burgex relied upon in drafting the reports for the Plaintiffs. The confidential documents drafted for individual non-party clients are not relevant for any claim or defense in this case. These documents were not relied upon by Burgex in preparing the Plaintiffs' reports.

To know if a butcher was qualified to prepare a cow, one would not need to see his last 35 brisket cuts. The same here, Burgex's reports prepared for private clients were not relied upon in preparing the reports for Log Creek 3 or Log Creek 4. As such, to understand Burgex's methodologies and qualifications, the government does not need to see Burgex's previous confidential work.

Rather, it seems the government's true motivation is not related to this case at all, but to utilize this discovery process in this case to short circuit and start an investigation into other reports prepared by non-party Burgex — a motivation highlighted by the deficiencies in the Protective Order proposed by the government in this case that would permit the government to share with unrelated parties for purposes not limited to this case.

The Court should not grant the government's motion that would allow the discovery process in this case to be utilized as a fact-finding mission for the IRS.

III. Conclusion.

Because the government's requested discovery poses a significant burden on non-party Burgex if compelled to produce, the Court should deny the Government's Motion to Compel. Alternatively, should the Court grant the Government's motion, non-party Burgex respectfully requests that the Court also order a modification to the protective order that would ensure any documents produced by non-party Burgex are solely used for purposes related to this case.

Respectfully submitted this 6th day of November 2023.

BAKER DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.

L. Clint Crosby
Georgia Bar No. 197877
3414 Peachtree Road NE, Suite 1500
Atlanta, GA 30326
Phone: 404-577-6000
Facsimile: 404-221-6501
ccrosby@bakerdonelson.com

Trinity Jordan*
Utah Bar No. 15875
ARMSTRONG TEASDALE, LLP
222 South Main Street
Salt Lake City, UT 84101
Phone: (801) 401-1600
tjordan@atllp.com
*pro hac vice forthcoming

Counsel for Non-Party
Burgex Mining Consultants