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E-Risk Solutions, Inc. v. West Point Insurance Services

United States District Court, D. Massachusetts

September 11, 2019

E-RISK SOLUTIONS, INC., a division of ENERGI INSURANCE SERVICES, INC., Plaintiff,
v.
WEST POINT INSURANCE SERVICES, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO COMPEL

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Currently pending before the Court is West Point Insurance Service's (“Defendant”) motion to compel complete initial disclosures from E-Risk Solutions (“Plaintiff”). [ECF No. 19]. For the reasons explained herein, Defendant's motion to compel [ECF No. 19] is GRANTED.

         Pursuant to Federal Rule of Civil Procedure 26(a)(1), “[a] party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order.” Here, the scheduling order issued by the Court directed the parties to serve initial disclosures by August 28, 2019. [ECF No. 18]. Therefore, the deadline for serving initial disclosures was August 28, 2019.[1]

Rule 26(a)(1) requires a party to provide:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party- who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Fed. R. Civ. P. 26(a)(1)(A).

         Here, Plaintiff has provided “hundreds of pages of documents, ” see [ECF No. 20 at 1], including a “summary spreadsheet of outstanding invoices, ” the disclosure of which Plaintiff stated was “[c]onsistent with Local Rule 26.1(a)(1), ” see [ECF No. 19]. Local Rule 26.1(a)(1) covers “Cooperative Discovery” and states that judicial officers “should encourage cost effective discovery by means of voluntary exchange of information, ” which “may be accomplished through the use of: (1) informal, cooperative discovery practices in which counsel provide information to opposing counsel without resort to formal discovery procedures.” LR, D. Mass. 26.1(a)(1). Plaintiff has provided no authority suggesting that Local Rule 26.1, which encourages cooperative discovery, supplants and displaces Rule 26(a), which makes mandatory initial disclosures in the form prescribed by Rule 26(a).

         The summary spreadsheet and assorted PDF documents provided by Plaintiff do not comport with the requirements of Rule 26(a) in several ways. See [ECF No. 19 at 20-34]. First, they do not provide “the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(i). The parties' designation of Rule 30(b)(6) depositions in their Rule 16.1 statement is not a stand-in for the disclosure required by Rule 26(a)(1). See [ECF No. 16 at 1; ECF No. 20 at 6-7]. Second, it is not clear whether the documents provided by Plaintiff constitute the full universe of documents “that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(ii). Third, the documents provided do not provide “a computation of each category of damages claimed by the disclosing party.” Fed.R.Civ.P. 26(a)(1)(iii). While the parties' Rule 16.1 statement included Plaintiff's settlement demand, see [ECF No. 16 at 1], a settlement demand is not the same as the computation of damages required by Rule 26(a)(1). Plaintiff stated in later correspondence with counsel that the documents provided state “the outstanding monies not paid on each case. ..approx 180k.” [ECF No. 19 at 41]. For these reasons, Plaintiff's initial disclosures were inadequate. The Court will grant Defendant's motion to compel complete initial disclosures.[2]

         Upon granting a motion to compel, or if the disclosure is made after the motion was filed, a court must award reasonable expenses after giving the non-movant an opportunity to be heard. See Fed.R.Civ.P. 37(a)(5)(A) (“[T]he court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.”). Plaintiff has been afforded an opportunity to respond to the motion to compel. See [ECF No. 20]. Exceptions to this general rule are not applicable here. See Fed.R.Civ.P. 37(a)(5)(i)-(iii).

         Accordingly, Defendant's motion to compel [ECF No. 19] is GRANTED. Plaintiff shall serve revised initial disclosures consistent with this Order and with the directives of Rule 26(a) within seven (7) days. The Court further orders that that Plaintiff's attorney shall pay Defendant's reasonable expenses incurred in making the motion to compel, including attorney's fees. Within two (2) days of this Order, Defendant shall submit to the Court an affidavit stating its costs and fees in bringing the motion to compel, at which time the Court will determine the amount of reasonable expenses to be paid.[3]

         SO ...


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