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Gade v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. Vermont

June 6, 2016

TERESA GADE, Plaintiff,


          Christina Reiss, Chief Judge

         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 O. 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] self-generated[.]" (Doc. 114-1 at 2.) Defendant's attorney responded "[y]es" when asked if Mr. Smith should include "[his] calculations[.]" Id.

         On April 20, 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 detailed] 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, Defendant 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[.]" Id. 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 of Mr. 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, 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." Id.

         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 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 ...

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