Hayes et al v. American Strategic Insurance Corporation

Filing 111

ORDER granting 109 Motion to Expedite; denying 108 Motion to Compel; and denying as moot 110 MOTION to Substitute. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/14/2020. (EDC)

Case 3:17-cv-01167-JWD-RLB

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ZOALEE AND CALVIN HAYES
Plaintiffs,
VS.

CASE NO.: 3:17-CV-01167-JWD-RLB

AMERICAN STRATEGIC INSURANCE
CORPORATION,
Defendant.

CASES TO WHICH MOTION PERTAINS1
Louis, Cassandra v. ASI
Alexander, Antoinette v. Bankers
Specialty Ins. Co.

3:17-cv-01187-JWD-RLB
3:17-cv-01355-BAJ-RLB

ORDER
Before the Court are American Strategic Insurance Corporation and Bankers Specialty
Insurance Company’s Motion to Compel Deposition of ATA Consultants, Inc. and Motion to
Compel Deposition of Austin Tanner and Motion for the Court to Intervene to Resolve Ongoing
Fee Dispute (“Motion to Compel”) (R. Doc. 108), Motion to Expedite (R. Doc. 109), and Motion
to Substitute (R. Doc. 110).
The defendants are seeking an order compelling certain expert depositions in the
captioned actions and for court intervention with respect to an ongoing fee dispute. The Court
has issued orders with respect to expert discovery in these consolidated actions and has
addressed the parties’ disputes over expert fees. (R. Docs. 106, 107). The deadline to complete
expert discovery has been extended to August 31, 2020. (R. Doc. 106).

1

Civil Action No. 17-1355-BAJ-RLB is consolidated with the lead case No. 17-698-BAJ-RLB. The defendants
shall file any future motions in the proper lead case.

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The threshold issue is the defendants’ request for an order compelling ATA Consultants,
Inc. and Austin Tanner to appear for depositions that had been set for August 3-4, 2020. The
Court has reviewed the deposition notices and subpoenas attached to the Motion to Compel. (R.
Doc. 108-6). It appears that the defendants originally noticed the depositions to occur in
Metairie, Louisiana on July 21, 2020. The defendants then subpoenaed the depositions to occur
by videoconference on August 3-4, 2020. These deposition notices were sent to Plaintiff’s
counsel in New Orleans, Louisiana.
“A motion for an order to a nonparty must be made in the court where the discovery is or
will be taken.” Fed. R. Civ. P. 37(a)(2); see also Fed. R. Civ. P. 45(d)(2)(B)(i) (“At any time, on
notice to the commanded person, the serving party may move the court for the district where
compliance is required for an order compelling production or inspection.”); Fed. R. Civ. P. 45(g)
(“The court for the district where compliance is required—and also, after a motion is transferred,
the issuing court—may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena or an order related to it.”). For the purposes of Rule
37(a)(2), a deposition taken by remote means “takes place where the deponent answers the
questions.” Fed. R. Civ. P. 30(b)(4). Given the record, although it is not completely clear, it
appears that the defendant is seeking to compel depositions that will take place in New Orleans,
Louisiana.
At a minimum, given there is no indication from defendants that the place of compliance
for the depositions will be in the U.S. District Court for the Middle District of Louisiana, the
Court is unable to provide relief with respect to the underlying subpoenas. Rather, the
defendants must refile the instant motion in the U.S. District Court where compliance is required.
Consent may then be given to have the matter transferred to the Middle District of Louisiana as

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the issuing court, or the court of compliance may so transfer it upon a finding of exceptional
circumstances. See Fed. R. Civ. P. 45(f).
Should these motions be refiled in another district, counsel shall provide the assigned
court with a copy of this order. It is also noted that his discovery dispute has been ongoing and
is not just limited to the two cases referenced above. In addition, it has been the subject of
separate (but consistent) rulings by all three magistrate judges in this district. Finally, the subject
matter of these cases pertain to the “Great Flood of 2016” which resulted in significant damage
to the Middle District of Louisiana and approximately 1800 federal lawsuits regarding the
sufficiency of flood related insurance policy determinations such as those at issue here. Any
court of compliance would be welcome to find exceptional circumstances, regardless of the
position of the parties, and have such motions transferred here pursuant to Rule 45(f).
Although my previous attempt was apparently unsuccessful (see R. Doc. 107), the
undersigned will also note the following in an effort to resolve this matter, particularly because
the instant motion also sought “The Court to Intervene to Resolve Ongoing Fee Dispute”. (R.
Doc. 108). The motion indicates that this is “the single remaining dispute.” (R. Doc. 108-1 at 4).
The Court has already noted that “the provisions of Rule 26(b)(4)(E)(i), [pertaining to
payment of expert fees], are applicable to the discovery sought in this matter.” (R. Doc. 107 at
2). The Court also specifically adopted the decision in Robert (“Bobby”) and Tina Annison v.
Metropolitan Property and Casualty Insurance Company, Case No. 3:17-cv-1629-SDD-EWD (Entry No.
57). In that decision, the Court noted that “Defendant correctly notes that the Report states that ATA –
not Tompkins – was retained to prepare the Report.” (Id. at 12). The Court also found that Plaintiff’s
argument that this was fact discovery and not expert discovery was “not persuasive.” (Id. at 14). In the
Reply addressed to that Court, the defendants specifically requested a 60-day extension of the “current
expert discovery deadline” so that the deposition of Mr. Tanner (which is sought in the instant motion)
could proceed. Annison v. Metropolitan Property, Case No. 3:17-cv-1629-SDD-EWD, (Entry No. 55 at 9)

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(emphasis added). Indeed, the Court specifically found “good cause to grant the Motion and extend the
deadline to complete expert discovery.” (Case No. 3:17-cv-1629-SDD-EWD (Entry No. 57 at 16).
Finally, the Court made an alternative determination that that even if the deponent was only covered
under Rule 26(b)(4)(D), then this expert discovery would still be appropriate. (3:17-cv-1629-SDD-EWD
(Entry No. 57 at 16-17). The Court also notes that the discovery at issue pertains to underlying facts and
background relied upon in the expert reports prepared by ATA and/or Tompkins.
Under the unique circumstances of this matter, Mr. Tanner’s fees in whatever capacity he
testifies are to be paid by the defense. This is proper under the payment provisions of Rule 26(b)(4)(E).
In the alternative, the Court would reach the same conclusion in its discretion pursuant to Rule
26(c)(1)(B) (for good cause, the court may issue an order specifying the “allocation of expenses” for
discovery).
The Court previously expressed concern that the deponent was insisting on extraordinary upfront
fees before sitting for the deposition, as has apparently become custom in certain fields. (R. Doc. 107). It
is clear from the briefing that this is not the case. Instead, Mr. Tanner requests a fee of $275 per hour.
The Court does not find that to be an unreasonable amount or otherwise manifestly unjust.

Based on the foregoing,
IT IS ORDERED that American Strategic Insurance Corporation and Bankers Specialty
Insurance Company’s Motion to Expedite (R. Doc. 109) is GRANTED.
IT IS FURTHER ORDERED that American Strategic Insurance Corporation and
Bankers Specialty Insurance Company’s Motion to Compel (R. Doc. 108) is DENIED.
IT IS FURTHER ORDERED that American Strategic Insurance Corporation and
Bankers Specialty Insurance Company’s Motion to Substitute (R. Doc. 110) is DENIED AS
MOOT.
Signed in Baton Rouge, Louisiana, on August 14, 2020.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE