Weisshaus v. The Port Authority of New York and New Jersey et al

Filing 223

ORDER: Based on the foregoing, it is hereby ORDERED that Plaintiff's motion is granted to the extent that he seeks to compel certain disclosures from Defendant; it is further ORDERED that Defendant must give to Plaintiff the information sought as described above; and it is further ORDERED that Plaintiff's motion is otherwise denied. (Signed by U.S.D. Judge by Designation Richard K. Eaton on 4/22/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YOEL WEISSHAUS,
Plaintiff,
-against-

11 Civ. 6616 (RKE)
ORDER

PORT AUTHORITY OF NEW YORK
AND NEW JERSEY,
Defendant.
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ORDER

On March 4, 2024, the Court held a Local Rule 37.2 pre-motion discovery conference in
response to Plaintiff’s letter-motion requesting this conference. ECF No. 202. By his letter-motion,
Plaintiff seeks to file a motion pursuant to Federal Rule of Civil Procedure 37(a)(3) and (c)(1) to
compel disclosure of information relied on in Ms. McCarthy’s expert report and reply (ECF Nos.
154, 201) and to preclude Defendant from using that information in support of its cross-motion for
summary judgment. See id.
Following the conference, the Court ordered Plaintiff to file a letter in accordance with
instructions provided during the conference and permitted Defendant to file a response letter. ECF
No. 218. Plaintiff filed his letter on March 18, 2024. ECF No. 219. Defendant filed its response on
April 15, 2024. ECF No. 222.
When considering Plaintiff’s letter-motion (ECF No. 202), along with his post-conference
letter (ECF No. 219), the Court will treat these filings as a motion to compel and to preclude
Defendant from using information in Ms. McCarthy’s expert report. Additionally, the Court will

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treat Defendant’s response letters (ECF Nos. 206, 222) as its opposition to Plaintiff’s motion.
By his motion, Plaintiff seeks to gain access to certain information relied on by Ms.
McCarthy in her expert report. In particular, he seeks documents related to (1) operating expenses,
(2) debt services, and (3) capital investments. See ECF No. 219. Plaintiff also asks the Court to
strike Ms. McCarthy’s reply (ECF No. 201) because she included a discussion relating to an earlier
motion to compel filed by Plaintiff. See ECF No. 202 at 1-2.
Federal Rule of Civil Procedure 26(a)(2)(B) states that, where an expert provides a written
report, the report must contain “the facts or data considered by the witness in forming [her
opinions.]” Fed. R. Civ. P. 26(a)(2)(B)(ii). Additionally, “[t]he parties must supplement these
disclosures when required under Rule 26(e).” Fed. R. Civ. P. 26(a)(2)(E). Rule 26(e) states that an
expert who makes a report also has a duty to supplement her report, which “extends both to
information included in the report and to information given during the expert’s deposition.” Fed.
R. Civ. P. 26(e).
First, as to operating expenses, Plaintiff claims that he requires access to the Port
Authority’s General Ledger as well as General Journal Entries made by accountants. ECF No. 219
¶ 20. Ms. McCarthy stated in her report, however, that the operating expenses used in the cash
flow analysis “are equal to those included in Schedule E of the Port Authority’s annual audited
financial Statements.” ECF No. 154 at 2. Because Plaintiff already has access to Schedule E, and
the operating expenses in Schedule E are all Ms. McCarthy relied on, Weisshaus is not entitled to
access the General Ledger or General Journal Entries to obtain information on this item.
Next, Plaintiff requests “complete disclosure of the General Ledger” for the allocation of
debt services. ECF No. 219 ¶ 26. Ms. McCarthy states in her report that the allocation of debt
services is “based on each facility’s pro-rated share of Unamortized Investment in Use (‘UIIU’)”

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and that “[e]ach facility’s pro-rated share of UIIU is based on the ratio of the facility’s UIIU to the
total Port Authority UIIU.” ECF No. 154 at 3. She also states that “[s]ome data in this cash flow
schedule is also taken from other reports prepared from the Port Authority’s existing General
Ledger system.” Id. at 1. In her deposition, Ms. McCarthy confirmed that the unamortized
investment in use information came from the General Ledger. McCarthy Dep., ECF No. 194-2, at
60:9-15. Therefore, because Ms. McCarthy allocated the debt services in her cash flow analysis
based on each facility’s pro-rated share of unamortized investment in use, Defendant must disclose
any report that contains the unamortized investment in use information.
Finally, as to capital investments, Plaintiff requests documents related to the following
items of Ms. McCarthy’s cash flow analysis: (1) capital paid with cash/reserves, (2) contributions
and grants in aid of construction, and (3) pass-through grants. ECF No. 219 ¶ 32.
For the contributions and grants in aid of construction, Ms. McCarthy relied on Schedule
E of the annual audited financial statements—which Plaintiff has. See ECF No. 154 at 2-3.
Plaintiff, therefore, is not entitled to any additional documents for contributions and grants in aid
of construction.
In her report, Ms. McCarthy does not directly state a source of information for the capital
paid with cash/reserves and the pass-through grants. See ECF No. 154 at 2.
The capital paid with cash/reserves apparently comes from the General Ledger. See
McCarthy Dep. at 210:21-23 (“[T]he Capital Paid With Cash/Reserves is also from the general
ledger.”). If, in making her cash flow analysis, Ms. McCarthy relied on a report from the General
Ledger containing the capital paid with cash/reserves, Defendant must disclose this report to
Plaintiff. If Ms. McCarthy relied on some other source, she must disclose it.
Additionally, Ms. McCarthy stated in her deposition that the pass-through grants were

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derived from information in the General Ledger. See McCarthy Dep. at 210:16-20 (“The Operating
Grants were derived from the information from the general ledger, as were the -- as were the PassThrough Grants.”). Plaintiff does not have access to this information. Therefore, Defendant must
disclose any report containing the pass-through grant information used in Ms. McCarthy’s cash
flow analysis.
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s motion is granted to the extent that he seeks to compel certain
disclosures from Defendant; it is further
ORDERED that Defendant must give to Plaintiff the information sought as described
above; and it is further
ORDERED that Plaintiff’s motion is otherwise denied.

Dated: April 22, 2024
New York, New York

/s/ Richard K. Eaton
U.S.D.J., by Designation