Gade v. State Farm Mutual Automobile Insurance Company
Filing
126
ENTRY ORDER Denying 116 Plaintiff's Motion for an Order Requiring Defendant to Pay Plaintiff's Expenses and Fees. Signed by Chief Judge Christina Reiss on 6/6/2016. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
TERESA GADE,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
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U.S.OISTRICT COURT
O
fSTRICT OF VERMON-T
FILED
ZDI6 JUN -6 AH If: 00
CLERK
BY.
LitMf
DEPUTY CLERK
Case No. 5: 14-cv-00048
ENTRY ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER
REQUIRING DEFENDANT TO PAY PLAINTIFF'S EXPENSES AND FEES
(Doc. 116)
Pending before the court is Plaintiff Teresa Gade's motion for an order requiring
Defendant State Farm Mutual Automobile Insurance Company ("State Farm"), her
automobile insurance carrier, to pay expenses and fees that she incurred in opposing
Defendant's motion to compel. (Doc. 116.) The court held oral argument on January 21,
2016, at which time the court took the motion under advisement.
Plaintiff is represented by Todd D. Schlossberg, Esq. State Farm is represented by
Richard H. Wadhams, Jr., Esq. and Robin 0. Cooley, Esq.
I.
Factual and Procedural Background.
On January 3, 2008 and May 21, 2009, Plaintiff was involved in automobile
collisions that she alleges caused her physical injury, pain, suffering, and loss of
enjoyment of life. State Farm denied her claims for uninsured/underinsured motorist
benefits. Plaintiffs Complaint seeks to recover uninsured/underinsured motorist benefits
and damages arising out of the alleged collisions.
On October 14,2014, Plaintiff disclosed her biomechanical expert, John Smith,
P.E. Defendant asked that Mr. Smith have his files with him at the time of his deposition,
but Defendant did not ask to inspect his files before or during the deposition. On April
17,2015, Defendant deposed Mr. Smith via Skype. During the deposition, Defendant's
attorney asked Mr. Smith for a "complete copy of [his] file, other than communication
between [him] and [Plaintiffs attorney] ... [including] everything that [he had] selfgenerated[.]" (Doc. 114-1 at 2.) Defendant's attorney responded "[y]es" when asked if
Mr. Smith should include "[his] calculations[.]" !d.
On April20, 2015, Plaintiff produced a copy of Mr. Smith's file, including eight
pages of data and calculations in PDF format. See Doc. 110 at 3 & n.2 (noting
production of Mr. Smith's thirty-five page report, which, according to Plaintiff, "amply
detail[ ed] the facts and data he considered in forming [his] opinions" and included "his
cv, a statement of his fees, and his list of four-years' prior testimony"). Defendant
contends that this production did not provide a means for it to determine all of the
underlying calculations Mr. Smith used to arrive at his conclusions. On July 28, 2015,
August 20, 2015, and September 10, 2015, Defendant requested Mr. Smith's files in
Excel format, which Defendant believed would show the underlying calculations and
inputs on which Mr. Smith relied. During a September 10, 2015 telephone conference,
Plaintiff advised Defendant that if Mr. Smith's files existed in Excel format, Plaintiff
would produce them.
On September 15, 2015, October 7, 2015, and October 13, 2015, Defenda~t made
additional written requests for Mr. Smith's files in Excel format. On October 13, 2015,
Plaintiff responded that she would not produce Mr. Smith's files in Excel format because
his files, including his "unredacted calculations" and "the applicable formulas[,]" had
previously been produced in PDF format. (Doc. 106-8 at 1.) Plaintiff invited Defendant
to cite "some applicable rule or decision that allows a party to compel another party's
expert to produce work-product files in a particular format[.]" !d. Although Defendant
certified that it made the foregoing informal requests for Mr. Smith's files in Excel
format, Defendant did not make a formal request for this information at any time.
On October 30, 2015, Defendant filed a motion to compel production ofMr.
Smith's files in Excel format. On November 13, 2015, Plaintiff filed an opposition to
Defendant's motion and attached an annotated version of Mr. Smith's data pages,
2
although Plaintiff did not produce Mr. Smith's files in Excel format. These annotations
included "detailed explanations of the calculations, equations, inputs, and entries, with
colored explanation notes." (Doc. 116 at 5-6.) Plaintiff further offered that Mr. Smith
was "willing to confer and discuss the calculations with the defense expert at no charge."
!d.
The parties agree that Defendant's motion to compel is now moot. Defendant
does not seek attorney's fees or expenses in connection with that motion. Plaintiff,
however, requests an order requiring Defendant to pay her expenses and fees incurred in
opposing Defendant's motion. In support of her request, Plaintiff submitted an invoice
from Mr. Smith in the amount of$1,330.00 for the three and a half hours he spent
reviewing Defendant's motion to compel and "[p]repar[ing] detailed annotation of
calculation sheets to assist [the] defense expert with understanding basic equations and
physics." (Doc. 117-2 at 1.)
During the January 21, 2016 hearing, Defendant represented that a "good deal" of
the parties' discovery had been informal, including requests from both sides for various
items of discovery. 1 With respect to Plaintiffs motion for fees and expenses, Defendant
reported that Plaintiff did not advise it ahead of time that Mr. Smith would be performing
additional work to produce his files in an electronic format. 2
II.
Legal Conclusions and Analysis.
A.
Whether Mr. Smith's Underlying Calculations are Within the Scope of
Mandatory Expert Disclosure.
Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of
relevant, nonprivileged information, which "need not be admissible in evidence to be
discoverable." Fed. R. Civ. P. 26(b)(1). Rule 26(a)(2) governs the mandatory production
of expert disclosures and requires that an expert disclosure be accompanied by a report
1
Plaintiff concedes that the parties had engaged in informal discovery prior to the motion to
compel, but emphasized that Defendant had failed to make a formal request for Mr. Smith's files
in Excel format prior to filing its motion to compel.
2
Plaintiff acknowledges that the information Defendant sought was partially in existence at the
time of Defendant's requests but notes that Mr. Smith nonetheless incurred expenses responding
to the motion to compel.
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containing "the facts or data considered by the witness in forming" his expert opinions.
Fed. R. Civ. P. 26(a)(2)(B)(ii). Although Plaintiff objected to producing Mr. Smith's
files in Excel format, it is undisputed that the supplemental expert production she
attached to her opposition to Defendant's motion to compel includes facts and data
considered by her expert witness in forming his opinions and that Mr. Smith relied on this
data to reach his conclusions. Pursuant to Rule 26(a)(2), Plaintiff was thus required to
produce the facts and data underlying Mr. Smith's conclusions as part of her initial expert
disclosure.
While "[a] responding party may generally produce documents in the format of
their choice[,]" Me/ian Labs Inc. v. Triology LLC, 2014 WL 4386439, at *2 (N.D. Cal.
Sept. 4, 2014 ), Rule 34 permits a party seeking electronically stored information to
specify the form of production and request the underlying metadata. See Fed. R. Civ. P.
34(b)(l)(C) (stating that a request for discovery permitted under Rule 26(b) "may specify
the form in which electronically stored information is to be produced"); see also Aguilar
v. Immigration & Customs Enf't Div. of US. Dep 't of Homeland Sec., 255 F.R.D. 350,
362 (S.D.N.Y. 2008) ("[T]he relevance ofmetadata to an Excel spreadsheet depends
upon its complexity and purpose. When a spreadsheet relies on mathematical formulas,
the metadata that discloses those formulas often is necessary for a thorough
understanding of the spreadsheet").
Here, Defendant informally and repeatedly requested that Plaintiff produce Mr.
Smith's files in Excel format. Plaintiff refused to produce Mr. Smith's files in Excel
format because it would disclose Mr. Smith's proprietary source code information, and
instead provided a supplemental expert disclosure. After receiving this supplemental
discovery, Defendant advised that, although the files in Excel format "might provide
further information regarding Mr. Smith's inputs, Defendant now has sufficient
information to assess the basis and reasons for Mr. Smith's opinions as well as the facts
and data used by Mr. Smith to form his opinions." (Doc. 114 at 1 n.l.) Plaintiff thus
complied with her duty of disclosure and Defendant properly withdrew its motion to
compel.
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B.
Whether Defendant Complied with Local Rule 26.
Prior to filing a motion to compel, the moving party must satisfy the requirements
of Local Rule 26( d), which requires the movant to "confer[] with opposing counsel in a
good faith effort to reduce or eliminate the controversy or arrive at a mutually satisfactory
resolution." L.R. 26(d)(1). A discovery motion must be accompanied by an affidavit
from counsel containing the following information:
(A)
(B)
(C)
(D)
(E)
(F)
certification that counsel have conferred in good faith to resolve the
dispute without court intervention;
dates of consultation with opposing counsel;
names of the participants;
length of time of the conferences;
any issues still unresolved; and
the reasons for the unresolved issues.
L.R. 26( d)(2).
According to Plaintiff, Defendant "engaged in no substantive discussion
whatsoever" before filing the motion to compel. (Doc. 116 at 7.) However, Defendant
made six informal written requests for Mr. Smith's files in Excel format from July 28,
2015 through October 13, 2015. 3 Defendant also made an oral request for the
information during a September 10, 2015 telephone call, after which Plaintiff initially
stated that she would produce Mr. Smith's files in Excel format, but later declined to do
so. In addition, Defendant specifically requested a "complete copy" of Mr. Smith's file
during his Skype deposition, including his calculations and "everything that [he had] selfgenerated[.]" (Doc. 114-1 at 2.)
Admittedly, the better practice would have been for Defendant to make a formal
request Mr. Smith's files and underlying calculations prior to his deposition. However,
"it is not the responsibility of opposing counsel to elicit the disclosures required from
3
Although the Second Circuit has not directly addressed this issue, at least two district courts
have held that a party must make a formal request for discovery before filing a motion to compel.
See Vigliotti v. Selsky, 2013 WL 3354423, at *3 (W.D.N.Y. July 3, 2013) (refusing to compel
production where party requested documents informally because "such requests are not
enforceable absent a formal demand"); Harding v. Town of Greenwich, 2010 WL 4681250, at *2
(D. Conn. Nov. 4, 2010) (denying motion to compel where movant's "informal requests were not
the subject of a formal discovery request").
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required from experts; Rule 26 clearly places that burden squarely on the party who has
retained the expert." Iacangelo v. Georgetown Univ., 272 F.R.D. 233, 234 (D.D.C.
2011 ). In this case, in light of the parties' course of conduct and Plaintiffs and Mr.
Smith's representations that the information would be provided, Defense counsel's
repeated attempts to obtain Mr. Smith's files in Excel format prior to seeking court
intervention, in conjunction with its affidavit supporting the motion to compel, satisfy the
requirements of Local Rule 26( d)(2).
C.
Whether Plaintiff is Entitled to Sanctions or Expenses and Fees.
Plaintiff has moved for sanctions and an award of expenses and fees that she
incurred while opposing Defendant's motion to compel. Rule 37 governs the issuance of
sanctions and awards for fees and expenses based on discovery violations and states that
if a motion to compel is granted or discovery is provided after a motion is filed, "the
court must ... require the party ... whose conduct necessitated the motion[] ... to pay
the movant's reasonable expenses incurred in making the motion, including attorney's
fees[, unless] other circumstances make an award of expenses unjust." Fed. R. Civ. P.
37(a)(5)(A)(iii).
If a motion to compel is denied, the court must order the movant "to pay the party
... who opposed the motion its reasonable expenses incurred in opposing the motion,
including attorney's fees. But the court must not order this payment if the motion was
substantially justified or other circumstances make an award of expenses unjust." Fed. R.
Civ. P. 37(a)(5)(B). Rule 37(c)(l)(A) provides that the court "may" impose sanctions for
failure to provide discovery. See John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc.,
845 F.2d 1172, 1176 (2d Cir. 1988) (holding that imposition of sanctions under Rule 37
is "within the discretion of the district court"); see also Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002) (noting "a court may impose
sanctions on a party for misconduct in discovery under its inherent power to manage its
own affairs[,]" and opining that where the "breach of a discovery obligation is the nonproduction of evidence, a district court has broad discretion [to deny or grant a request for
sanctions]").
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Prior to the hearing on Defendant's motion to compel, Plaintiff provided a
supplemental expert disclosure that contained the underlying data and calculations Mr.
Smith utilized in reaching his expert opinions. The history of the parties' discovery
dispute does not reveal any willful non-compliance with discovery obligations, but rather
a genuine dispute wherein each side believed that it was "substantially justified" in its
position. Fed. R. Civ. P. 37(c)(l). Both parties had a reasonable basis in fact and law for
their positions and they each acted in good faith. Plaintiff did not advise Defendant that
she or Mr. Smith would incur any additional costs in providing information she was
obligated to produce as part of her initial disclosure. In such circumstances, it would be
unreasonable and unfair to require Defendant to pay Mr. Smith to respond to a motion to
compel that arguably should have been unnecessary. Accordingly, an award of sanctions,
expenses, and fees is not warranted in this case.
CONCLUSION
For the foregoing reasons, the court DENIES Plaintiffs motion for an order
requiring Defendant to pay Plaintiffs expenses and fees incurred in opposing
Defendant's motion to compel (Doc. 116).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this
6rfo.day of June, 2016.
Ch~ge
United States District Court
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