United States District Court, D. South Carolina, Columbia Division
COMPANION PROPERTY & CASUALTY INSURANCE COMPANY (n/k/a SUSSEX INSURANCE COMPANY), Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, Defendant and Third-Party Plaintiff,
REDWOOD REINSURANCE SPC, LTD., SOUTHPORT LANE ADVISORS, SOUTHPORT SPECIALTY FINANCE, ADMINISTRATIVE AGENCY SERVICES, and ALEXANDER CHATFIEELD BURNS, Third-Party Defendants.
ORDER AND OPINION
matter is before the court on the Motion to Compel of
Defendant and Third-Party Plaintiff U.S. Bank National
Association (“Defendant”) (ECF No. 113).
Plaintiff Companion Property & Casualty Insurance Company
(“Plaintiff”) filed a Response in Opposition (ECF
Civ. P. 26 states that parties must provide “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.”
Fed.R.Civ.P. 26(a)(1)(A)(iii). The precise meaning of
“computation” is not defined within the rule,
however courts interpret the requirement to include providing
“disclosure of evidentiary material upon which the
category of damages is based, including materials bearing on
the nature and extent of the injuries suffered.”
Stemrich v. Zabiyaka, No. 1:12-CV-1409, 2013 WL
4080310, at *1 (M.D. Pa. Aug. 13, 2013) (citing Gomez v.
Markley, Civ. No. 07–cv–0868, 2011 WL
112886, at *2 (E.D. Pa. Jan. 13, 2011). To this end, courts
also require more than a mere dollar amount to satisfy the
computation requirement. Id. (citing cases);
accord In re Oakwood Homes Corp., 340 B.R. 510, 541
(Bankr. D. Del. 2006) (citing cases).
a party fails to make a disclosure” required by
Fed.R.Civ.P. 26, “any other party may move to compel
disclosure and for appropriate sanction” after it has
“in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.”
Fed.R.Civ.P. 37(a). Specifically, a party “may move for
an order compelling an answer, designation, production, or
inspection.” Fed.R.Civ.P. 37(a)(3)(B).
primary contention is that Plaintiff’s initial and
supplemental disclosures thus far are deficient.
(See ECF No. 113 at 8.) Defendant asserts that
Plaintiff failed to satisfy its mandatory obligations
required by Fed.R.Civ.P. 26(a)(1)(A)(iii) by not providing
“information in its possession showing how it
calculated [its disclosed minimum damage amount]” and
by not “produc[ing] the underlying records supporting
[its disclosed minimum damage amount]. (Id.)
Defendant rejects Plaintiff’s assertion that “its
Rule 26(a)(1)(iii) disclosures are sufficient because
[Plaintiff] may supplement them with an expert report.”
(Id. at 9.) Defendant specifically requests that the
court compel Plaintiff to “provide a computation of
each category of damages claimed based on the best
information now available to it, including the amount of
Grantors’ obligations under the reinsurance trust
agreement it had to pay from its own funds due to a shortfall
of collateral in the trust accounts.” (Id. at
however, contends in its Response that Defendant’s
Motion to Compel is both contrary to law and mooted by
Plaintiff’s Second Supplemental Initial Disclosure.
(ECF No. 122 at 4–7.) Specifically, Plaintiff argues
that where the method of damages calculation is the subject
of expert evidence, “initial disclosure of the amount
of damages the party allegedly suffered may be sufficient
even though the disclosing party failed to disclose the
precise method by which it calculated the specified
amount.” (Id. at 4 (citing Moore’s
Federal Practice § 26.22[c][ii]).) Further, Plaintiff
cites Silicon Knights, Inc. v. Epic Games, Inc., No.
5:07-CV-275-D, 2012 WL 1596722 (E.D. N.C. May 7, 2012) for
the proposition that an expert report may “satisf[y
plaintiff’s] obligation under Rule
26(a)(1)(A)(iii)” as a supplement under Fed.R.Civ.P.
26(e). (Id. at 5.) Plaintiff also notes that it has
provided U.S. Bank with “the composition of its damages
claim, the categories of documents it would rely on to
determine those damages, and [Plaintiff] expressly stated
that those documents would be produced at the appropriate
time.” (Id. at 6.)
discretion is afforded to a district court’s decision
to grant or deny a motion to compel. Erdmann v. Preferred
Research Inc., 852 F.2d 788, 792 (4th Cir. 1988).
Exercising that discretion here, this court finds Plaintiff
has not adequately satisfied its obligation under
Fed.R.Civ.P. 26(a)(1)(A)(iii). Generally, an expert report
may not simply stand in the place of Plaintiff’s
required 26(a)(1)(A)(iii) disclosures. See Frontline Med.
Associates, Inc. v. Coventry Health Care, 263 F.R.D.
567, 569–70 (C.D. Cal. 2009) (ruling that future expert
analysis did not relieve the Plaintiff of its obligations
under Fed.R.Civ.P. 26(a)(1)(A)(iii)). But see City &
Cty. of San Francisco v. Tutor-Saliba Corp., 218 F.R.D.
219, 221 (N.D. Cal. 2003) (citing Pine Ridge Recycling,
Inc. v. Butts Cty., Ga., 889 F.Supp. 1526, 1527 (M.D.
Ga. 1995)) (“[D]isclosing a precise figure for damages
without a method of calculation may be sufficient in cases
where other evidence is developed e.g. in the
context of a preliminary hearing, and it is appropriate to
defer further specification to e.g. development of
expert testimony.”). While this court recognizes that
Plaintiff intends to supplement its damages computation in
its expert report, it is appropriate at this time for
Plaintiff to provide an initial estimate as to each damage
category and a general analysis as to how it
computed the figure. See In re Oakwood Homes Corp.,
340 B.R. 510, 541 (Bankr. D. Del. 2006). Such computation is
also necessary for the parties’ evaluation of the case.
these reasons, this court GRANTS Plaintiffs Motion to Compel
(ECF No. 113). Plaintiff is ordered to use the best of its
ability, based on the best information available to it, to
produce a computation of each category of its damages,
excluding punitive damages, as addressed in Defendant’s
Motion to Compel (ECF No. 113) no later than July 8, 2016.
Plaintiffs disclosure is to be made with both parties’
understanding that the computation of damages may be
supplemented by Plaintiff and/or its expert(s).
IS SO ORDERED.
 Plaintiff is not required to provide a
computation of its punitive damages at this time. See
E.E.O.C. v. Wal-Mart Stores, Inc.,276 F.R.D. 637, 639
(E.D. Wash. 2011) (compiling cases where district courts
denied motions to compel ...