United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
COKE MORGAN, JR SENIOR UNITED STATES DISTRICT JUDGE
matter came before the Court on Plaintiff Newport News
Holdings, LLC's (''Newport News
Holdings's" or "Plaintiffs") Motion to
Quash Defendant Great American Insurance Company's
("GAIC's" or "Defendant's")
Subpoena Duces Tecum to Andrew C. Macleay
("Macleay"). Doc. 15 ("Motion"). The
Court held a hearing on the instant Motion on January 30,
2018, and SUSTAINED the Motion from the
bench. The Court now issues this Opinion & Order further
explaining its ruling.
case involves the owner of a hotel in Newport News suing its
insurance company for coverage of alleged damage that
occurred during alleged vandalism to its hotel. See
generally Doc. 1, Ex. 1 ("Compl."). Newport
News Holdings filed its complaint in the Circuit Court for
the City of Newport News on September 26, 2017. See
Id. GAIC timely removed the case to this Court on
October 31, 2017. Doc. 1. On November 27, 2017, the Parties
jointly moved to bifurcate bad faith claims from the
remainder of the insurance claims. Doc. 13. The Court GRANTED
that bifurcation on November 28, 2017. Doc. 14. The Court
entered a Rule 16(b) scheduling order on
November 30, 2017. Doc. 17.
News Holdings filed the instant Motion on November 29, 2017.
Doc. 15. GAIC responded in opposition on December 13, 2017.
Doc. 18. Newport News Holdings replied on December 18, 2017.
Rule of Civil Procedure 45 governs the issuance, service, and
quashing of subpoenas, including subpoenas duces
tecum. See Fed.R.Civ.P. 45. Rule 34(c) permits
a party to serve a request to produce documents within the
scope of Rule 26(b) on a non-party. See Fed.R.Civ.P. 34(c).
Motion presents two (2) issues: whether Macleay is an expert
such that Newport News Holdings has a privilege interest in
Macleay's files, and whether a Rule 45 subpoena is an
appropriate method for obtaining an expert's
GAIC does not phrase it as such, its first argument is
essentially a standing argument. "Ordinarily, a party
does not have standing to challenge a subpoena issued to a
nonparty unless the party claims some personal right or
privilege in the information sought by the subpoena."
Singletary v. Sterling Transp. Co.. 289 F.R.D. 237,
239 (E.D. Va. 2012) (quoting United States v. Idema.
118 Fed.Appx. 740, 744 (4th Cir. 2005)). Newport News
Holdings claims privilege over "[communications with a
retained or anticipated expert, " namely, Macleay, and
"draft version of final reports.. .." Doc. 16 at 4.
GAIC counters that Macleay is a public adjuster and that his
files were prepared for pursuing claims, not in anticipation
of litigation. Doc. 18 at 5. Newport News Holdings attaches
its contract with Goodman-Gable-Gould Company
("GGG"), Macleay's employer, in reply,
observing that the agreement states that "GGG agrees to
provide litigation services in support of legal matters
described above in which Client has retained C. Thomas Brown,
Esq. ("Attorney") as their attorney." Doc. 20
at 4 (quoting Id., Ex. 2 at 1). It also states that its
attorney arranged retention of GGG and Macleay on June 1,
2016, in light of a May 11, 2016 letter from counsel retained
by GAIC stating a full reservation of rights and demanding
formal examinations under oath as well as sixteen (16)
categories of documents. See Id. at 3-4. It
represents that it understood a letter from counsel arriving
four (4) months after a loss, with no decision, as
preparation for litigation. See id
GAIC is correct that not every public adjuster is an expert,
it has offered no persuasive explanation why Macleay cannot
serve as both an expert and a public adjuster in this case.
GAIC notes that Macleay's contract includes some services
that appear more closely related to his role as a public
adjuster than an expert, but it does not dispute the accuracy
of the language "litigation services" beyond
arguing that the contract was written broadly to protect
Macleay's files. Even if Newport News Holdings was
writing the contract in such a manner, such a conclusion does
not preclude the related conclusion that Newport News
Holdings intends to call Macleay as an expert. Thus, the
Court FOUND that Macleay may be properly designated as an
expert, and further FOUND that a privilege interest applies
here. The Court further ORDERED Newport News Holdings to
produce a privilege log for any document in Macleay's
file over which it claims privilege within fifteen (15) days
of the date of this Order.
privilege finding does not end the inquiry because Newport
News Holdings only asserts privilege as to some
documents while arguing that the remainder of the file is not
yet discoverable. District courts are split on whether a Rule
45 subpoena is appropriate for obtaining an expert's
files, and this District has apparently never taken a
position on the issue. Newport News Holdings urges the
adoption of the standard from the Western District of
Virginia, which holds that a bare Rule 45 subpoena duces
tecum is an improper evasion of the exclusive expert
discovery provisions of Rule 26(b)(4). Doc. 16 at 3-4
(quoting Marsh v. Jackson. 141 F.R.D. 431, 433 (W.D.
Va. 1992)). At least one other court in this Circuit, the
Western District of North Carolina, has applied the Western
District of Virginia's standard. See Newcomb v.
Principal Mut. Life Ins. Co.. No. I:07cv345, 2008 WL
3539520, at *3 (W.D. N.C. Aug. 11, 2008) (applying
Marsh and collecting cases regarding the
Marsh standard). The contrary view is that Rule 45
is an appropriate tool for discovery on all non-parties, and
Rule 26 has no explicit ban on using Rule 45 subpoenas
duces tecum for experts. See, e.g..
Expediters Int'l of Washington. Inc. v. Vastera.
Inc.. No. O4cvO32l, 2004 WL 406999, at *3 (N.D. 111.
Feb. 26, 2004) (collecting cases).
Court agrees with the Western District of Virginia that a
bare Rule 45 subpoena to an expert is an impermissible
evasion of the process for expert discovery. Rule 26(b)(4)(A)
provides that "A party may depose any person who has
been identified as an expert whose opinions may be presented
at trial. If Rule 26(a)(2)(B) requires a report from the
expert, the deposition may be conducted only after the report
is provided." Fed.R.Civ.P. 26(b)(4)(A). It then proceeds
with detailed limits on what information is discoverable. See
id 26(b)(4)(B)-(D). Rule 26 does not explicitly prohibit
other discovery methods. Nevertheless, as the court in
Marsh observed, this framework "contemplate[s]
gathering information first from the party viz Rule
26(b)." Marsh. 141 F.R.D. at 433. Allowing
Parties to serve a bare Rule 45 subpoena duces tecum
on experts before the Rule 26(b) disclosures would function
as an end-run around this framework for expert discovery.
Thus, the Court ADOPTED the standard in
Marsh. FOUND that GAIC's Rule
45 subpoena to Macleay is procedurally defective because it
occurs outside the Rule 26(b)(4) framework, and QUASHED the
subpoena, SUSTAINING the instant Motion.
a Rule 45 subpoena at this stage does not give Newport News
Holdings a license to withhold a wide swath of files, though,
because the scope of the privilege for expert files is a
qualified privilege. See Fed.R.Civ.P. 26(b)(4). It must
produce materials at the appropriate time for expert
discovery, working cooperatively to facilitate expert
discovery and deposition in advance of trial. If any disputes
arise regarding materials listed on the ordered privilege ...