Huh v. Mono County Office of Education ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JENNIFER HUH, No. 2:19-cv-00170-WBS-KJN 12 Plaintiff, 13 v. ORDER 14 MONO COUNTY OFFICE OF (ECF No. 59) EDUCATION, et al., 15 Defendants. 16 17 Presently before the court is an informal discovery dispute concerning plaintiff’s request 18 for test questions and book materials that defendants’ expert plans on using during plaintiff’s 19 Rule 35 mental examination. (ECF No. 59.) At the informal hearing Catherine J. Roland 20 appeared for plaintiff; Anthony N. DeMaria appeared for defendants. The parties have agreed to 21 the mental examination, and its general parameters, but disagree as to whether plaintiff is entitled 22 to these materials. 23 Defendants’ position is that providing plaintiff with these materials would violate 24 copyright and trademark laws. (Id. at 2.) Defendants cite to the Ethics Code of the American 25 Psychological Association, which instructs psychologists to maintain the “integrity and security 26 of test materials.” (Id.) As a result of this position, defendants state that they are willing to 27 provide plaintiff with the materials if plaintiff designates an expert who is appropriately “licensed 28 and qualified.” (Id.) wOASe 2 LDV EER SING IN RVUs Ee OY Ov 1 Defendants’ position is at odds with Federal Rule of Civil Procedure 26(a)(2)(B)(ii) and 2 | relevant precedent. Rule 26(a)(2)(B)(i) requires testifying experts to provide a report that 3 | contains the “facts and data considered by the witness in forming [the expert’s opinions.]” As the 4 | Northern District of California held, “The raw data from [plaintiffs] psychological examination 5 | fall within this category.” Starkey v. McHugh, 2015 WL 6438762, at *2 (N.D. Cal. Oct. 23, 6 | 2015). The undersigned agrees with the court in Starkey, and therefore holds that defendants 7 || must produce the raw data—the questions as well as the book materials— to plaintiff's counsel 8 | after the Rule 35 examination takes place. Regarding defendants’ arguments raising privacy 9 | concerns from the disclosure of these materials, the court orders plaintiff, or defendant if plaintiff 10 | produces similar material, to not disseminate, distribute, or publish the materials beyond as 11 || reasonably necessary to prosecute this specific case.! 12 Accordingly, it is HEREBY ORDERED that if the Rule 35 examination proceeds, the 13 | parties must produce the relevant raw data—the test questions as well as the book materials— 14 | with one another in accordance with Rule 26(a)(2)(B). Additionally, the parties shall not 15 | disseminate, distribute, or publish the materials beyond as reasonably necessary to prosecute this 16 || specific case. 17 IT IS SO ORDERED. 18 || Dated: June 15, 2020 Aectl Aharon 20 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 21 22 /170.huh 23 24 25 26 ——_—_ ' As discussed in the informal hearing in this matter, the parties are encouraged to stipulate to any 28 | additional protections that would facilitate production.