City of Brevard, North Carolina v. HCA Healthcare, Inc. et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-114
THIS MATTER is before the Court on the parties’ Joint Motion for Entry
of Stipulation Regarding Expert Discovery [Doc. 121].
The parties seek the entry of their proposed Stipulation Regarding
Expert Discovery [Doc. 121-1] to govern expert discovery in this matter. As
grounds, the parties’ state that the claims and defenses in this matter will
involve detailed and complex analyses that will be crucial for all parties. The
parties also state that the proposed stipulation is substantively the same to
the expert stipulation entered in the North Carolina Business Court case
Davis, et al. v. HCA Healthcare, Inc., et al., 21 CVS 3476 (“State Action”). As
such, the parties seek the entry of their proposed stipulation to provide for
the orderly and efficient management of expert discovery under the laws of
the State of North Carolina and the Federal Rules of Civil Procedure.
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IN RE MISSION HEALTH ) STIPULATED EXPERT
ANTITRUST LITIGATION )
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DISCOVERY ORDER
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Accordingly, for the reasons stated by the parties, and for cause
shown,
IT IS, THEREFORE, ORDERED, that the parties’ Joint Motion for Entry
of Stipulation Regarding Expert Discovery [Doc. 121] is GRANTED.
IT IS FURTHER ORDERED that, notwithstanding Federal Rule of Civil
Procedure 26 and any applicable Court Orders, the parties shall:
1. Within three (3) business days of any party serving expert
witness reports and/or expert declaration in this litigation
pursuant to Federal Rule of Civil Procedure 26(a)(2) or
Order by the Court, the party or parties offering the expert
witness shall produce the following:
a. documents containing the facts, data, or
assumptions that the expert witness relied on in
forming the opinions to be expressed, including, but
not limited to, any empirical investigations, statistical
correlations, regressions, or other analyses,
including, but not limited to, all underlying reports and
schedules, performed by or at the direction of the
expert witness as well as all documents or other
information necessary to reconstruct the expert
witness’s work, calculations, and/or analyses
(“Expert Data”);
b. any computerized models, analyses, or
spreadsheets in native format;
c. electronic copies of any data used in computerized
models, analyses, or spreadsheets;
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d. any data or programs that are not commonly
available and are necessary for recreating any
computerized models, analyses, or spreadsheets;
e. other documents relied upon by the expert witness,
such as documents that are identified in the expert
witness’s report and are publicly available;
f. if any program, model, or data file is generated using
a non-commercially available program or the file
format is not readily ascertainable, the producing
party shall identify the program used to generate
and/or run the subject program, model, or data file.
If, despite best efforts, the receiving party cannot
practically obtain the software needed to run the
subject program, model, or data file, the producing
party shall work with the receiving party and use its
best efforts to facilitate the receiving party’s access
to the necessary software; and
g. Amount compensated.
2. The parties are not required to produce any programs, data,
documents, or materials that would require the producing
party to infringe upon a license or to otherwise procure a
license for the receiving party. If data, documents, or
materials relied on by an expert witness is subject to a
license, the producing party will identify all such data,
documents, or materials and provide the licensor’s contact
information.
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3. Where documents have previously been produced as part
of discovery, identification by Bates number is sufficient.
With respect to deposition transcripts, identification by the
name of the deponent, the date(s) of the deposition, and the
page and line numbers the expert witness has relied on is
sufficient.
4. Notwithstanding the foregoing and the Federal Rules of
Civil Procedure, the following types of information shall not
be the subject of expert discovery:
a. The content of communications or work product
shared among and between: (i) counsel and the
expert and/or the expert’s staff; (ii) counsel and any
non-testifying expert consultant and/or the
consultant’s staff; (iii) the expert and other experts or
other non-testifying expert consultants; (iv) experts
and their staff; (v) non-testifying expert consultants
and their staffs; and (vi) the respective staffs of
experts or non-testifying expert consultants and the
staffs of other experts or non-testifying expert
consultants.
b. Notes, drafts, written communications, or other
records of preliminary work and analysis regardless
of the form in which they take (e.g., notes,
worksheets, outlines, non-final calculations,
modeling, and drafts) created by, or for, experts or
non-testifying expert consultants, unless they are
cited in and/or relied upon in the report.
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c. Documents or other information the expert
considered but did not rely upon in forming an
opinion.
5. The foregoing exclusions from expert discovery will not
apply to any information, communications or documents
upon which the expert relies as a basis for his or her
opinion. All information, communications or documents
upon which the expert relies as a basis for his or her
opinion are discoverable.
6. No subpoenas need be served on any testifying expert
from whom a party provides a report or declaration.
Instead, the proffering party is responsible for producing all
discoverable materials and information subject to
discovery and will make the expert available for deposition
consistent with the applicable Rules of this Court at a time
mutually agreed to by the parties and consistent with the
Court’s scheduling Orders.
IT IS SO ORDERED. Signed: November 25, 2024
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