United States District Court, D. Massachusetts
E-RISK SOLUTIONS, INC., a division of ENERGI INSURANCE SERVICES, INC., Plaintiff,
WEST POINT INSURANCE SERVICES, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
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.
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.
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).
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).
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
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.
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.