*1 Before the Court is Plaintiff's Motion to Compel (Doc. 49), wherein Bhrahmani 1 LLC d/b/a MORE 4 LE$$ #2 moves the Court to order Defendant AmGUARD Insurance Company (“AmGUARD”) to supplement production and disclosure documents, documents and information related to Frank Fuller's expert testimony, and the deposition testimony of Melinda Champluvier, Jessica Jennings or, in the alternative, a prepared corporate representative to speak on behalf of Jessica Jennings. AmGUARD opposes the motion. Doc. 57. The motion is ripe.

This diversity action arises from an insurance coverage dispute that stems from damages caused by Hurricane Laura to Plaintiff's property located at 1310 N Martin Luther King Hwy., Lake Charles, Louisiana 70601-2051 (“Property”) on August 27, 2020. Doc. 1, p. 2. The Property was built around 1979 and was converted from an auto parts store in 2011. Doc. 38-1, p. 1. Plaintiff purchased the Property in 2015. Id. AmGUARD provided a policy of insurance, number BHBP088505 (“Policy”), to Plaintiff, which covered the Property against perils including hurricanes and provided the following coverages: $2,500 for awnings coverage; $946,400 for building coverage; $230,000 for business personal property coverage; $10,000 for debris removal; $15,000 for fungi, wet rot, dry rot; $10,000 for ordinance and law.[1] Doc. 1, p. 2; doc. 38-1, p. 2. On August 31, 2020, Plaintiff reported the loss to AmGUARD, who assigned it claim number BHBP088505-001-001-001. Doc. 38-1, p. 2. On September 1, 2020, AmGUARD retained an independent third-party adjuster, Engle Martin & Associates. Doc. 38-1, p. 3–4. On September 8, 2020, Engle Martin inspected the Property. Id. at 3; doc. 14, p. 5. On November 11, 2020, Plaintiff retained Complete Adjusting Services, LLC (“CAS”), which inspected the Property. Doc. 1, p. 3. CAS included estimates for items that Engle Martin did not observe to be damaged or did not find necessary, such as replacement of the entire roof, windows, glass front door, fluorescent lights, and vinyl floor tiles. Doc. 38-1, p. 9. On November 20, 2020, Plaintiff sent a demand letter to AmGUARD to release unconditional tenders. Doc. 1, p. 4; doc. 14, p. 6. On August 8, 2021, Plaintiff filed suit in this Court alleging claims for damages under breach of insurance contract, bad faith claims adjusting, and other bad acts, including penalties, under Louisiana Revised Statutes sections 22:1892 and 22:1973. Doc. 1, p 6–7. Trial is set for May 22, 2023, at 9 a.m. Id.

Federal Rule of Civil Procedure 26(b) defines the scope of discovery as follows:

*2 Fed. R. Civ. P. 26(b)(1). Rule 37(a) governs motions to compel discovery responses and provides, as applies here, that a party may move to compel a discovery response if the opposing party fails to answer an interrogatory submitted under Rule 33 or fails to produce a document requested under Rule 34. Id. at 37(a)(3)(iii)–(iv). For purposes of this rule, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to respond.” Id. at 37(a)(4). If the motion is granted or if the requested discovery is only provided after the motion is filed, “the 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.” Id. at 37(a)(5)(A).

A. Supplementation of AmGUARD's initial disclosures to include all information added after the disclosure date

Here, Plaintiff complains that AmGUARD provided initial disclosures on December 23, 2021, and since has failed to supplement this information. Doc. 49-1, p. 14. Specifically, Plaintiff argues that AmGUARD has failed to provide information related to the release of Jessica Jennings and the assignment of a new claims adjuster to Plaintiff's file, the complete and unaltered updated claims file to include notes made in connection to Defendant's October 3, 2022 inspection of the Property, a general description of any basis for nonpayment of the claimed loss as it relates to Frank Fuller's estimate, any and all photographs, draft reports, and notes taken by its experts during their October 3, 2022 inspection. Doc. 49-1, pp. 23–24. On the other hand, AmGUARD maintains that it has timely provided all non-privileged information related to the claim, including the adjuster's notes. Doc. 59, p. 12.

First, AmGUARD argues that it did provide Plaintiff with information related to Ms. Jennings's release and Ms. Champluvier's assumption of the claims adjuster role. Doc. 57-13. The Court agrees. Second, AmGUARD argues that its obligation to supplement the CMO's initial disclosures is inapplicable to the October 3, 2022 inspection completed by its litigation experts because after the parties failed to reach a settlement “the parties’ obligations regarding the timing and scope of discovery are governed by the Federal Rules of Civil Procedure, not the Court's CMO.” Doc. 59, p. 13. This, however, is not entirely true; the Court's CMO does not cease upon completion of the Streamlined Settlement Process (“SSP”). Therefore, AmGUARD maintains a duty to supplement required disclosures and prior responses to interrogatories, requests for production, or requests for admissions if it learns that the information disclosed was materially incomplete or incorrect and the new information has not been made know to the other party in discovery or in writing. Fed. R. Civ. P. 26(e). Additionally, the duty to supplement also applies to an expert's reports and information from any deposition of an expert. Id. Lastly, the CMO orders parties to comply with Rule 26(e). Doc. 2-1, p. 2.

Part 3.(4) of Exhibit A to the Court's CMO orders AmGUARD to produce the following:

Doc. 2-1, p. 10. The CMO also provides that “adjusters’ reports, and other expert analyses, including draft reports, are not privileged and should be produced.” Doc. 2, p. 3.

Thus, AmGUARD shall comply with the CMO and produce within 24 hours of this order any and all information related to the October 3, 2022 inspection. Furthermore, within 24 hours of this order AmGUARD shall comply with the CMO and provide any supplemental information related to Requests for Production 1-3, 4(b-g), 5–7, 10, 11, 18, 28, and 29, as well as Interrogatories 1, 2, 4, 15, and 22–24. Should any of the information remain unchanged, AmGUARD shall provide Plaintiff with notification of such within 24 hours of this order.

B. Supplementation of AmGUARD's production to include the information presented in Frank Fuller's deposition testimony and his Rule 26(a)(2)(B) expert report information

Here, Plaintiff alleges that AmGUARD has failed to produce draft reports, photographs taken, and/or handwritten inspection/field notes to which Mr. Fuller referred during his deposition. Doc. 49-1, p. 24. Plaintiff contends that AmGUARD is withholding the draft report under the work product privilege despite not privilege log being provided and the fact that the CMO states that expert analyses, which includes draft reports, are not privileged. Id. at 16. Next, Plaintiff complains that Mr. Fuller described a “New Project Form” in his deposition, but this document has not been produced. Doc. 49-1, pp. 15–16. Also, Plaintiff alleges that, in his deposition, Mr. Fuller referred to many handwritten notes and photographs taken during his October 3, 2022 inspection. Id. at 17. As to these, Plaintiff alleges that AmGUARD told it that it must subpoena this information to get it. Id. Lastly, Plaintiff argues that AmGUARD failed to produce Mr. Fuller's qualifications in full, including his references, a complete CV, any compensation he is receiving, facts or date he considered in making his opinion, and all previous testimony provided. Doc. 49-1, p. 17.

To the contrary, AmGUARD argues, Plaintiff prematurely filed a motion to compel with regard to these items. Doc. 59, p. 14. AmGUARD contends that Plaintiff did not subpoena its expert witnesses until after conducting expert depositions on April 14th and 20th and did not wait for the responses before filing this motion. And on April 28, 2023, AmGUARD provided all required discovery in this regard, which moots Plaintiff's motion as to Mr. Fuller. Id. at 15–16. Therefore, this part of the motion is denied.

C. Production of Jessica Jennings for deposition testimony, or, in the alternative, a prepared corporate representative able to speak about Jessica Jennings's actions taken, and deposition dates to depose Melinda Champluvier

*4 Plaintiff claims Ms. Jennings was responsible for all coverage decisions regarding Plaintiff's claims and that AmGUARD failed to produce Ms. Jennings for a deposition. Doc. 49-1, p. 18. Furthermore, Plaintiff alleges that on July 12, 2022, in a Rule 37 conference, AmGUARD agreed to produce deposition dates by July 26, 2022, however, it did not. Id. Then on September 25, 2022, Plaintiff alleges that AmGUARD notified it that Ms. Jennings no longer worked for AmGUARD; thus, it would not produce her for a deposition. Id. Plaintiff argues that AmGUARD provided it with an incorrect address for Mr. Jennings, and that it wasted time and money attempting to issue a subpoena via out of state process server. Id. at 18–19. Plaintiff now asks the Court to compel AmGUARD to subpoena Ms. Jennings to appear for a deposition or produce her for a video deposition. Id. at 19. By contrast, AmGUARD argues that Ms. Jennings is beyond its control, it never promised to produce Ms. Jennings, and Plaintiff was notified her departure from AmGUARD in December 2021 through AmGUARD's initial disclosures. Doc. 57, pp. 18–19. Plaintiff can, on its own accord, continue to pursue the deposition of Ms. Jennings as she is no longer employed by AmGUARD. Accordingly, the Court will deny Plaintiff's request to compel Ms. Jennings's deposition.

Additionally, Plaintiff argues that it has neither been given deposition dates nor claim notes/documentation for Ms. Champluvier, AmGUARD's adjuster on Plaintiff's claim as of AmGUARD's October 3, 2022 inspection. 49-1, p. 15. AmGUARD counters that Plaintiff did not request Ms. Champluvier's deposition until April 14, 2023, notwithstanding the fact that Plaintiff has known since December 2021 that Ms. Champluvier is the current adjuster. Doc. 57, p. 22. AmGUARD states that it made Ms. Champluvier available on April 24, 2024, yet Plaintiff declined to depose her. Id. AmGUARD is steadfast that it has provided the entire claim file that Plaintiff claims was a necessary precedent to the deposition. Id. at 12. Here, Plaintiff can continue coordinate with AmGUARD to reschedule a deposition for Ms. Champluvier. It is too close to trial for the Court to compel AmGUARD to provide another deposition date, considering Plaintiff refused AmGUARD's previous offered date.

Also, Plaintiff complains that AmGUARD's 30(b)(6) representative that was produced was unable to provide any information about actions taken by Ms. Jennings. Doc. 49-1, p. 19–20. Thus, if AmGUARD is unable to produce Ms. Jennings, then Plaintiff requests that the Court compel AmGUARD, at its own costs, to produce a corporate representative that can testify to the actions taken by Ms. Jennings in the processing of Plaintiff's claim. AmGUARD counters that Plaintiff was provided sufficient opportunity to question its representative during the seven-hour deposition. Again, it is too close to trial for the Court to compel AmGUARD to conduct a second 30(b)(6) deposition; this matter should have been brought to the Court's attention much earlier considering the first 30(b)(6) deposition took place in November 2022. Thus, Plaintiff's request for an additional 30(b)(6) deposition is denied.

For the aforesaid reasons, IT IS ORDERED that Plaintiff's Motion to Compel (Doc. 49) will be GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that requests for costs and attorney's fees be DENIED.

THUS DONE AND SIGNED in Chambers on this 15th day of May 2023.