Thull v. Techtronic Expert Discovery: Example of a Gastonette?

gastonette. (1988) A dilatory “dance” in which each of two responsible parties waits until the other party acts–so that the delay seems interminable; esp., a standoff occurring when two courts simultaneously hear related claims arising from the same bases and delay acting while each court waits for the other to act first. The term was coined by Judge Jon O. Newman in In re McLean Industries, Inc., 857 F.2d 88, 90 (2d Cir. 1988), on the model of an old vaudeville act: “After you, my dear Alphonse.” “No, after you, Gaston.”

As discussed in a recent post, Plaintiff Thull sued Techtronic for injuries Thull suffered in a table saw accident. An expert retained by Plaintiff in the case who resides in Oregon refused to produce documents in response to a valid subpoena and this brought the exquisite and rare idea of the gastonette to mind (which, by the way, reminds me to remember to remind readers to remember renvoi, but I regress).

U.S. District Court Judge Patrick J. Schiltz (D. Minn.) rejected Defendants’ motion to the U.S. District Court (D. Minn.) to compel production of the documents, saying they had to go to Oregon to get documents from a non-party in Oregon.

U.S. District Court Judge Michael H. Simon (D. Ore.) held the non-party expert in contempt for refusing to produce the documents but Judge Simon also ruled

if any presiding trial court judge in the Underlying Action…believes it is appropriate for this civil contempt order to be modified in any way, then:

If and to the extent that any such…judge has the legal authority to modify this civil contempt order…such judge may do so.

So here, then, is my shorthand version:

Defendant to Alphonse (D. Minn.): I want plaintiff’s expert’s documents.

Alphonse to Defendant: Ask Gaston.

Defendant to Gaston (D. Ore.):  I want plaintiff’s expert’s documents.

Gaston to Defendants: Only if it is ordered by Alphonse.

But Judge Schiltz might have ended the apparently endless feeback loop by ruling that plaintiff’s expert would not be able to testify for plaintiff if he insisted on holding back the documents.