United States District Court, D. Maryland
Hunt Valley Baptist Church, Inc.
Baltimore County et al.
TO ALL COUNSEL OF RECORD
case concerns an action filed by Hunt Valley Baptist Church,
Inc. against Baltimore County (the “County”) and
the Baltimore County Board of Appeals (the
“Board”) for allegedly violating the Religious
Land Use and Institutionalized Persons Act of 2000, and the
First and Fourteenth Amendments to the United States
Constitution by prohibiting the construction of a church at
821 Shawan Road, Hunt Valley, MD, 21030 (the
matter was referred to me for discovery and related
scheduling. (ECF No. 71). Pending before this Court are three
motions, (ECF Nos. 70, 77, and 79), one of which is ripe for
review: Plaintiff's Motion to Quash and Motion for
Protective Order, (ECF No. 70), challenging Defendants'
Subpoena served on Ken Wells and K.J. Wells, Inc. (ECF No.
70-3). The issues are briefed and no hearing is necessary.
Loc. R. 105.6 (D. Md. 2016). For the reasons stated,
Plaintiff's Motion to Quash and Motion for Protective
Order is GRANTED in part and DENIED in part.
claims that Mr. Wells is a retained non-testifying consulting
expert and therefore his work product and communications with
Plaintiff's counsel are privileged under Fed.R.Civ.P.
26(b)(4)(D). (ECF No. 70-1 at 4, 7). Defendants contend that
“other than the asserted work product privilege, Mr.
Wells' documents are otherwise discoverable”
because Fed.R.Civ.P. 26(b)(4)(D) and attorney-client
privilege are inapplicable under the circumstances. (ECF No.
76 at 7-8). Additionally, Defendants ask that, in the event
that Plaintiff's motion was granted, the Court would
conduct an in camera review of the disputed
property was conveyed to Plaintiff by a recorded Deed dated
December 18, 2012. (ECF No. 76 at 1). In hopes of
constructing a new church, Plaintiff retained Mr. Wells and
K.J. Wells, Inc. to assist in obtaining a special exception
to construct on the recently conveyed property. (ECF No. 70-1
at 2). In doing so, Mr. Wells helped “prepare and
revise drawings, plans and all engineering aspects of the
applications. (Id.). He was “intricately
involved in the applications” for the special
exception, assisted in the planning and strategizing, and
even testified before the Baltimore County Administrative Law
Judge (the “ALJ”) and the Board of Appeals.
(Id.). Although the ALJ granted the exception, the
Board denied Plaintiff's application, and this suit
followed. (ECF No. 21).
to the conveyance to Plaintiff, to the former owners granted
to the County a Deed of Conservancy Area Easement covering
approximately 70% of the property-including that area of the
property on which the proposed church is to be built-as part
of a subdivision plan. (ECF No. 76 at 2). Coincidentally, the
subdivision plan was prepared by Mr. Wells in 2006. While the
ALJ's opinion discussed the Conservancy Area Easement and
permitted construction despite it, the Board's decision
reversing the ALJ led the Defendants to conclude that the
existence of the Conservancy Area Easement may be dispositive
of the entire case. As such, Defendants issued the disputed
subpoena to Mr. Wells given his involvement in establishing
the easement in 2006, and his subsequent involvement in the
efforts to obtain an exception to it.
claims that it retained Mr. Wells and his company as
engineering experts to assist with Plaintiff's
application for a zoning exception to construct the church.
(ECF No. 70-1 at 5). This included retention during the
administrative proceedings, the petition to the Board, and
the current litigation. (Id.). In Plaintiff's
view, Mr. Wells is a non-testifying consulting expert and
deserving of the protections afforded such experts under
Fed.R.Civ.P. 26(b)(4)(D). (Id. at 7). Defendants
argue that Fed.R.Civ.P. 26(b)(4)(D) is inapplicable because
Mr. Wells already testified as an expert witness in this
matter before the Board of Appeals. (ECF No. 76 at 8).
Defendants further contend-having now asserted Mr. Wells'
earlier involvement in the potentially dispositive
easement-that regardless of his position as an expert, they
have substantial need for the information he holds and intend
to call him as a witness to this case, making Rule
26(b)(4)(D) less applicable.
26(b)(4)(D) protects non-testifying consulting experts
retained in anticipation of litigation from testifying or
producing information absent exceptional circumstances. But
even where an expert is retained to testify, communications
with counsel are still protected “except to the extent
that the communications: (i) relate to compensation for the
expert's study or testimony; (ii) identify facts or data
that the party's attorney provided and that the expert
considered in forming the opinions to be expressed; or (iii)
identify assumptions that the party's attorney provided
and that the expert relied on in forming the opinions to be
expressed.” Fed.R.Civ.P. 26(b)(4)(C).
Court's view, Mr. Wells cannot be afforded the full
protections of a consulting expert after having testified
during the administrative proceedings. Mr. Wells did not
testify in an entirely separate case, but in that which
precipitated this action. Plaintiff now challenges the
constitutionality of the Board's decision, and its
Complaint references a “licensed surveyor” who
“testified as [an] expert” before the ALJ-now
known to be Mr. Wells. Moreover, Plaintiff failed to provide
any support to show how an expert who previously testified
could be re-cloaked with the protections of a non-testifying
consulting expert. Nevertheless, Mr. Wells may serve as both
a testifying and consulting expert, but by doing so those
materials considered in forming his testimony are
discoverable, regardless of how those materials were utilized
in his role as a consulting expert. See Beverage Mktg.
Corp. v. Ogilvy & Mather Direct Response, Inc., 563
F.Supp. 1013, 1014 (S.D.N.Y. 1983) (“It is conceivable
that an expert could be retained to testify and in addition
to advise counsel outside of the subject of his testimony.
Under such a circumstance it might be possible to claim a
work product privilege if this delineation were clearly
Mr. Wells plays another role in this case separate and apart
from his role as a consulting or testifying expert. Given his
work in preparing the previous property owner's
subdivision plan in 2006-including the easement in
question-Mr. Wells is a fact witness as to those events and
activities. These activities pre-date his expert work for
Plaintiff and, absent some other basis, are discoverable by
Defendants to the extent the materials are otherwise
responsive to the subpoena.
Reply, Plaintiff asserts that any information held by Mr.
Wells concerning the initial easement is irrelevant because
the easement is not new information, but central to this
dispute, prompting the application for special exception at
issue now claimed to be unconstitutionally denied. (ECF No.
80 at 4-7). The ALJ approved the exception and the
Board's decision mooted the ALJ's decision concerning
the easement. In the Court's view, the ...