# Marine Petroleum Company v. Champlin Petroleum Company

> Court of Appeals for the D.C. Circuit · May 30, 1980 · 641 F.2d 984

URL: https://www.frixlaw.com/law-library/cases/9467616

## Case

- **Full name:** MARINE PETROLEUM COMPANY, Appellant, v. CHAMPLIN PETROLEUM COMPANY Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 30, 1980
- **Citations:** 641 F.2d 984; 206 U.S. App. D.C. 31; 29 Fed. R. Serv. 2d 668; 1980 U.S. App. LEXIS 17106
- **Precedential status:** Published
- **Opinion:** On rehearing by Robinson
- **Judges:** III, Robinson, MacKinnon, Robb
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467616

## How later opinions describe it (automated extraction)

- holding that the plaintiff Marine did not carry its burden of demonstrating exceptional circumstances because it did not show that it was "impracticable" for it to obtain facts or opinions on the same subject by means other than the defendant's expert
- holding that an independent consultant on energy matters may be treated as both an ordinary witness and a price-setting expert obtained in preparation for litigation
- noting the advisor was employed for litigation and knew only information he learned during that retention

## Opinion text

OPINION ON PETITION FOR REHEARING
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Marine Petroleum Company petitions for rehearing of our decision sustaining the District Court’s limitation on the scope of discovery obtainable from Charles R. Owens, Champlin Petroleum Company’s consultant on energy matters. 1 We found that the record adequately supported the central premise that Owens was an expert retained by Champlin in anticipation of litigation but one who would not be called as a witness. 2 We held that Federal Civil Rule 26(b)(4)(B) 3 proscribed inquiry by Marine into facts acquired or opinions formulated by Owens while functioning in that role. 4 Our ruling left Marine free to depose Owens on his knowledge and views prior to July 7, 1975, when his engagement as Champlin’s litigation expert began, but barred any probe into information developed by Owens thereafter. 5
Our analysis of the record, as it then stood, led us to conclude during the decisional process that Marine had not met the specification of Rule 26(b)(4)(B) preconditioning discovery from a nontestifying litigation expert on “a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means ....” 6 Marine expressly confines its petition for rehearing to this single facet of our decision, 7 and refers us to discovery rulings, not heretofore brought to our attention, 8 in the principal litigation pending in the District, Court for the Eastern District of Missouri, 9 where Marine has endeavored strenuously but quite unsuccessfully to obtain what quite accurately it denominates “Owens related documents and testimony.” 10
From subpoenas duces tecum demanding production, by Marine’s description, of “all communications by and between Owens and Champlin employees,” 11 Marine has gained only limited access to those dated after July 7. 1975, because of consistent rulings that the great majority are protected at least by *996 the attorney-client privilege, 12 the work product rule 13 or some combination of both. 14 Marine’s efforts to depose five of Champlin’s personnel, though somewhat more fruitful, have fallen short of Marine’s objectives, for while these witnesses have been ordered “to testify and answer questions regarding meetings held at Champlin in 1973, wherein Champlin made its decision on classification of purchases and formulation of prices,” 15 the court has held that “[a]ny statements . . . made by a non-lawyer to a lawyer, or statements by a lawyer to a non-lawyer, are privileged as attorney-client communications, and, as such, are ... protected from disclosure.” 16 On this basis, Marine contends that the exceptional circumstances envisioned by Rule 26(b)(4)(B) have now been demonstrated.
In our earlier opinion, we expressed the view that “Marine’s approach to a solution to its assumed dilemma proceeds in the wrong direction.” 17 In explanation, we noted that “[tjhere is no rule or principle restricting access to facts possessed by Owens to discovery from Owens alone,” 18 and that “Marine has and long has had the opportunity to secure from Champlin officials the full panoply of facts discoverable, and the corresponding opportunity to employ its own experts to formulate opinions thereon.” 19 The record excerpts from the main action on which Marine relies serve to emphasize that once again Marine has missed the vital point.
The exceptional circumstances of which Rule 26(b)(4)(B) speaks are those “under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” 20 The “subject referred to is not Owens’ testimony itself; 21 rather, it is the group of topics upon which Marine would have Owens testify-here, alleged price violations in petroleum sales by Champlin to Marine, and particularly the assertedly wilful nature thereof. 22 Whatever might be said for Marine’s claim of inability to approximate Owens’ personal versions through others, marine has yet to establish that it cannot “obtain facts or opinions on” those points “by other means.” 23 As so *997 well it has been put, “it is not necessary . . . that the party seeking discovery know what facts the other party’s experts have discovered and what opinions they have formed. His burden is to show circumstances such that he cannot get any facts or opinions on the subject in which he is interested.” 24 That standard Marine has not met. 25
The petition for rehearing is
Denied.
. Marine Petroleum Co. v. Champlin Petroleum Co., No. 77-1345 (D.C.Cir. Apr. 12, 1979) [hereinafter cited Opinion (Op.)].
. Op., text at ns. 30-51 and ns. 47, 49, 51.
. Fed.R.Civ.P. 26(b)(4)(B), quoted in relevant part in Op., text at n.23.
. Op., pt. III.
. Id., pts. II, III. Owens had previously been retained by Champlin in a different capacity. Id., text at ns. 6-9.
. Fed.R.Civ.P. 26(b)(4)(B).
. Marine advises that it “does not seek rehearing with respect to this Court’s ruling that Owens was specially employed by Champlin as an expert retained in anticipation of litigation and was not without the ambit of Rule 26(b)(4)(B), as an actor or viewer.” Appellant’s Petition for Rehearing at 1 n.l. “The sole thrust of the instant petition” Marine continues, is “directed to this Court’s ruling that ‘exceptional circumstances under which it is impracticable for [Marine] to obtain facts or opinions on the same subject by other means’ do not exist.” Id.
. Subsequent to announcement of our decision, Marine has filed three motions to supplement the record on appeal with copies of pleadings and orders in the record in the principal litigation. We have granted these motions.
. Marine Petroleum Co. v. Champlin Petroleum Co., No. 75-974C(l) (E.D.Mo.) [hereinafter cited Main Action].
. Appellant’s Petition for Rehearing at 2.
. Id.
. See generally 2 J. Weinstein, Evidence K503[01] et seq. (1979).
. See generally C. Wright & A. Miller, Federal Practice §§ 2021-2028 (1970).
. Main Action (memoranda and orders of Apr. 28, 1978; June 26, 1978; Aug. 9, 1979). As Marine notes, the court stated in a memorandum issued concomitantly with the order of August 9, 1979, that “[t]he documents labeled ‘protected’ (P) are exempt from discovery because privileged as attorney-client communications, lawyers’ work product, or the pre-trial opinions of experts" (at 3) (emphasis supplied). The latter ground is not further discussed therein, or in memoranda accompanying the two earlier orders, although the implications of the attorney-client privilege and the work product rule for document discovery were delineated. We fail to see how these revelations assist Marine here. Our appellate authority extends, of course, only to the action of the District Court for the District of Columbia-an auxiliary forum for a limited proceeding in aid of the main action, with a function no broader than issuance, supervision and enforcement of the subpoena summoning Owens to depose. The fact pertinent to the issues before us is the broad denial of document production, and not the reasons therefor.
. Main Action (order of May 12, 1978 at 1).
. Id.
. Op., text following n.57.
. Id.
. Op., text at n.60 (footnote omitted).
. Fed.R.Civ.P. 26(b)(4)(B).
. To read the rule otherwise would be to emasculate it, since obviously the expert’s testimony-by that construction, the “subject”could be rendered only by the expert himself.
. Op., text at n.53.
. Fed.R.Civ.P. 26(b)(4)(B). In our prior opinion we stated that “[w]e [were] not impressed by Marine’s claim of inability to procure such information from Champlin officials,” id. at n.60; “[g]iven the range of discovery methodology and the enforcement powers of the court,” we added, “we can attribute its lack of success only to faulty technique,” id. Marine has now deposed more than a dozen Champlin officials, as well as two of its customers and two officials of its parent corporation. Appellees’ Memorandum in Opposition to Appellant’s Mo *997 tion to Supplement the Record on Appeal at 3 — 4. Marine harps on the obstacles to “Owens related documents and testimony,” text supra at note 10, but affords us no explanation as to why, with factual discovery so extensive, it' cannot engage one or more experts of its own to express opinions on “the same subject” that Owens might have.
. 8 C. Wright & A. Miller, Federal Practice § 2032 at 256 (1970).
. The court in which the principal litigation is ongoing apparently agrees. In our earlier opinion we remarked “that [this] court [had] already afforded Marine an opportunity to solicit and submit a finding by the District Court for the Eastern District of Missouri that it [was] ‘impracticable for [Marine] to obtain facts or opinions on the same subject by other means,’ and that there [had] been no response to that invitation.” Op., text at n.56 (footnote omitted). Our reference was to an order, eight months previous to oral argument, deferring action on Marine’s motion to accelerate the argument date pending submission of a finding of that sort. Marine Petroleum Co. v. Champlin Petroleum Co., No. 77-1345 (D.C.Cir. June 23, 1977). Shortly after entry of our order, Marine moved the District Court for the Eastern District of Missouri for such a finding, and the court considered the motion at an in-chambers conference but declined Marine’s request. Appellant’s Petition for Rehearing at 8-9 n.9.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467616. Public record. Not legal advice.