Powerweb Energy Inc. v. Hubbell Lighting Inc.
Chief Executive Officer Was Disclosed As Fact And Expert Witness
Contracts | Breach | Civil Procedure | Discovery | Evidence | Expert Witnesses
- U.S. District Court
- Nov 15 2013 (Date Decided)
- Fitzsimmons, J.
"A person may instruct a deponent not to answer [questions] only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)," pursuant to Federal Rule of Civil Procedure 30(c)(2). The plaintiff, Powerweb Energy Inc., sued the defendant, Hubbell Lighting Inc., and alleged it breached a license contract and misappropriated trade secrets concerning wireless lighting controls. Hubbell filed counterclaims and alleged that Powerweb Energy diverted Hubbell’s funds to uses that were unsanctioned. Hubbell disclosed an expert forensic accountant, J. Allen Kosowsky, who allegedly perused Powerweb’s bank records, documents and invoices. During the deposition of the plaintiff’s chief executive officer, Lothar E.S. Budike, Hubbell’s attorney asked about the plaintiff’s allegations that the defendant requested changes to the wireless lighting controls project and then refused to pay. Powerweb’s attorney objected that this area of questioning was not within the scope of the chief executive officer’s area of expertise, and that Hubbell wrongly sought fact discovery after fact discovery had closed. The chief executive officer was disclosed as an expert on the parties’ contracts, the development of wireless lighting controls, and the defendant’s alleged refusal to pay for costly changes. The court found that the questions of Hubbell’s attorney were relevant to Hubbell’s counterclaims. Powerweb Energy’s counsel should have permitted the chief executive officer to testify, stated its objection for the record, and asked the court to exclude the testimony at trial. The court granted Hubbell’s request to depose the chief executive officer for an additional two hours about information in the forensic accountant’s report. The court recommended that the deposition take place at a time when the court is available to rule on any objections.