The Case

Plaintiffs Deborah Raimey and Larry Raisfeld were the owners of a property located at 24 Michigan Street in Long Beach, New York, which was located about one block from the beach. The plaintiffs lived and resided in an adjacent home and purchased the house at 24 Michigan Street with plans to ultimately expand their own home. After Sandy struck, one of the plaintiffs observed significant damage to the house that did not exist prior to the storm, including extensive damage to the floors, which had shifted in the storm.

An independent adjustor examined the home and Wright paid the plaintiffs slightly more than $60,000 (in several installments) for cosmetic, non-structural damage. The adjustor also prepared a document entitled “Engineer Request for Fidelity,” in which he made the following observations:

During a recent flood inspection, I noticed the flooring in the dwelling was uneven from the front to the rear. The floor seemed to have a “rolling action” as you walked over it. A visual inspection of the flooring at several of the walls, appeared to have dropped about a [sic] inch or two in some cases. There was a 5 inch difference between the ceiling height at the corner of the bedroom and the center line of the bedroom. The exterior of the building had about 3ft of sand adjacent to the building. An inspection of the building crawl space showed several framing members out of line. A visual inspection of the front of the roof showed unevenness along the roof line. At the current time, the building appears to be unsafe to live in.

(Emphasis added.)

Magistrate Judge Brown said that U.S. Forensic sent George Hernemar, a licensed engineer, to conduct an inspection of the property. Magistrate Judge Brown found that Mr. Hernemar, who had been trained in Sweden, obtained employment as a contractor with U.S. Forensic, a nationwide engineering firm, after answering an ad on Craigslist for a New York licensed engineer, and that he conducted approximately 50 home inspections for U.S. Forensic to assess damage inflicted by Superstorm Sandy. (U.S. Forensic had been engaged by Wright's predecessor in interest to report on the damage to the 24 Michigan Street property.)

Magistrate Judge Brown found that, following his inspection, Mr. Hernemar wrote and transmitted a report dated December 9, 2012 (the “December 9 report”) containing his findings to U.S. Forensic. Magistrate Judge Brown found that the December 9 report, which contained “numerous pages of text and photographs,” offered the following “Results and Conclusions”:

1) The physical evidence observed at the property indicated that the subject building was structural [sic] damaged by hydrodynamic forces associated with the flood event of October 29, 2012. The hydrodynamic forces appear to have caused the foundation walls around the south-west corner of the building to collapse.

2) The extent of the overall damages of the building, its needed scope of repair combined with the age of the building and its simple structure, leads us to conclude that a repair of the building is not economically viable.

(Emphasis added.)

Magistrate Judge Brown found that the plaintiffs “never received this report from their insurance carrier.” Rather, Magistrate Judge Brown found, they received a report dated January 7, 2013 (the “January 7 report”) which contained “completely divergent 'Results and Conclusions'”:

1) The physical evidence observed at the property indicated that the subject building was not structurally damaged by hydrodynamic forces, hydrostatic forces, scour or erosion of the supporting soils, or buoyancy forces of the floodwaters associated with the subject flood event.

2) The physical evidence observed at the subject property indicated that the uneven roof slopes, leaning exterior walls and the uneven floor surfaces within the interior of the building, were the result of long term differential movement of the building and foundation that was caused by long-term differential movement of the supporting soils at the site and long-term deflection of the building framing.

(Emphasis added.)

Magistrate Judge Brown found that, based on the January 7 report, Wright refused to pay for any structural damage to the plaintiffs' home.

Litigation ensued and, following the failure of mediation to resolve the dispute, the plaintiffs' counsel filed a “Motion to Set Discovery Schedule and Set for Trial,” informing the court, for the first time, that it had evidence of a U.S. Forensic engineering report that provided a conclusion contrary to the report upon which Wright had based its denial of much of the plaintiffs' flood insurance claim.

Magistrate Judge Brown explained that, in response, Wright, among other things, denied all knowledge of the seemingly altered report, blamed the plaintiffs for failing to provide evidence of the earlier report prior to mediation, sought to select a different expert as “this engineer and U.S. Forensics [sic] are now allegedly tainted,” and demanded that the plaintiffs provide all information concerning the discrepancies in the engineering reports to the new engineer.

On October 1, 2014, Magistrate Judge Brown issued the following order:

In light of the nature of the allegations set forth in plaintiffs' submission and defendant's response thereto, a hearing shall be conducted before the undersigned … At that hearing, plaintiffs shall be prepared to present testimony and documentary evidence concerning the allegations relating to U.S. Forensic Report No. 12.22.1304 and the various incarnations of that report referenced in the parties' submissions. Counsel for the parties will ensure that Mr. George Hernemar will be present in person to testify about the preparation and submission of the report and related matters. Counsel for defendants will also produce any other necessary witnesses to explain, as appropriate, any differences between the purported original report and the report ultimately produced in discovery.

Magistrate Judge Brown held an evidentiary hearing on October 16, 2014, at which the parties produced three witnesses. Magistrate Judge Brown explained that, at the hearing, Mr. Hernemar and a second witness explained that the “radical changes” in his report resulted from a “peer review process.” Magistrate Judge Brown said that Mr. Hernemar testified that he “wrote both of these reports” and insisted that no one had made any alterations or changes to the reports. Magistrate Judge Brown said that he testified that he had “an open discussion” on the telephone with a U.S. Forensic engineer, who pointed out that “the draft was based on assumptions.” As a result, Mr. Hernemar “issue[d] a report changing [his] opinions.” Magistrate Judge Brown stated that although the testimony of Mr. Hernemar “was, at times, confused,” he testified unequivocally that, “I rewrote my report.”

Magistrate Judge Brown stated that after Mr. Hernemar testified, counsel for Wright “attempted to end the hearing, foreclosing further inquiry on this subject”:

MR. MARTINE: Judge, I think the purpose of this hearing was to determine whether we should have some discovery; in essence, whether or not something untoward was going on between U.S. Forensic and perhaps Mr. Hernemar.

THE COURT: Are you under the impression that the result of the hearing so far gives us a clear answer to that?

MR. MARTINE: Yes, Judge….

THE COURT: You brought a witness who is going to talk about the peer review process. Right?

MR. MARTINE: I don't think I need to call him, Judge.

Magistrate Judge Brown noted that the plaintiffs' counsel and Magistrate Judge Brown disagreed. Magistrate Judge Brown stated that, after a lunch recess, “counsel for [Wright] tried again”:

MR. MARTINE: Judge, my feeling is that, based on the testimony this morning and based on the reason for this hearing, the hearing is resolved. The witness clearly testified that those were his opinions adopted by him following a peer review process; that he wasn't required, he wasn't compelled, he wasn't really told to do anything. He adopted the opinions.

Magistrate Judge Brown pointed out that counsel for Wright “acknowledged that he was aware of the information to which Michael Garove, the 'peer review' engineer, would testify”:

And I can tell you what Mr. Garove will testify, and this is a representation to the court, is that, yes, he was the peer reviewer for the original report, the rough report of December, that his peer review, basically his peer review, he made suggestions and that the two engineers consult about the suggestions and that Mr. Hernemar could adopt or deny every single suggestion made and then the report is finalized. And that is the extent of the testimony concerning the peer review, Judge.

Magistrate Judge Brown explained that, notwithstanding counsel's representation, counsel for the plaintiffs requested that Mr. Garove be permitted to testify, which application was granted.

Magistrate Judge Brown explained that Mr. Garove testified that:

- he was an engineer licensed in Louisiana and New York, having obtained the latter license in 2011, who has worked for U.S. Forensic for approximately four and a half years;

- he did not, at any time, inspect the 24 Michigan Street home or any portion of the property, and was unsure whether he had inspected any of the surrounding homes;

- he was assigned to review the December 9 report authored by Mr. Hernemar; and

- he received an email assigning him review of that report, “most likely from Gary Bell,” Managing Partner of U.S. Forensic.

Magistrate Judge Brown staid that Mr. Garove provided the following description of U.S. Forensic's “peer review” process:

The peer review process, when we receive the initial document it is a draft form … Meaning, it is not a final version.

And within Microsoft Word, which is a software program that we all should be familiar with, there is a tab in there, a process by which you can initiate a tracking of any type of markups, changes, comments, whatever you would like to do in that report …

So … the peer review process involves reviewing the contents of the report, both technically, grammatically, you know, the entire content of the report, as well as reviewing any other drawings, photographs, or any other information that the inspecting engineer would produce or provide to us. From that information … we basically evaluate as a peer, as an engineer, the validity of what is being stated … and then make a final determination about whether or not the conclusions that are included within the report are accurate or in line with, you know, engineering knowledge.

[O]nce that's done, this copy of this report, which has everything that you do as a peer reviewer, is then tracked and documented, so it is not hidden, is submitted back to the office and/or the engineer, inspecting engineer, for their review to determine whether or not they feel as though any changes, comments, markups or anything are correct or in line with their opinion.

And then at that point there is an opportunity, even again within that same software program, to either individually accept or deny any changes that you make or alterations….

Magistrate Judge Brown then found that, “rather than the 'open discussion' described by [Mr.] Hernemar, [Mr.] Garove described a process by which the report authored by the inspecting engineer was rewritten by an engineer who had not inspected the property and whose identity remained concealed from the homeowner, the insurer and, ultimately, the Court. [Mr.] Garove acknowledged that he revised the December 9 report, sent what became the final report to [Mr.] Hernemar and, remarkably, stated that the two had no further discussion or contact in the matter…. Instead, it appears that [Mr.] Hernemar 'adopt[ed Mr. Garove's] conclusions completely.'”

Magistrate Judge Brown found that Mr. Garove “endeavored to minimize the changes he made in this report,” testifying that “in this case a lot of stuff just got moved around, it got restructured, because the grammar was not correct or it wasn't in the proper place in the document.” Magistrate Judge Brown stated that:

In truth, [Mr.] Garove reversed the conclusion of the inspecting engineer, and removed many pertinent observations which were inconsistent with [Mr.] Garove's conclusions. And, despite repeatedly asserting that he had never read the January 7 report, in response to a question by the Court, [Mr.] Garove conceded that he, in fact, wrote the January 7 report.

Magistrate Judge Brown stated that, in his declaration, Mr. Garove had “the temerity to assert the following”:

Visual observations from an inspecting engineer during a site visit are not necessarily as informative as a review of photographs of the property after the site visit because review of quality photographs by an experienced peer-reviewer can yield more accurate analysis and results than direct visual observation of conditions by an inspecting engineer with less experience and understanding of the subject.

Magistrate Judge Brown stated:

The thought is, then, that [Mr.] Garove, sitting in a remote location and never seeing the subject property, can do a better job than a licensed engineer sent to the scene. This assertion begs the question of why U.S. Forensic would not simply send a photographer to homes to be inspected, and produce purportedly superior reports at lower cost by having a remote engineer review the resulting photographs. It also raises the issue of why [Mr.] Garove did not sign the subject report, since he is the one who actually performed the analysis.

Magistrate Judge Brown found that Mr. Garove's assertions were “undermined by the substance of the report, which provides the reader, in uncertain terms, with assurances that this report is based upon a physical inspection of the property by, and relying upon the expertise of, [Mr.] Hernemar, the inspecting engineer.” Magistrate Judge Brown added that the January 7 report listed Mr. Hernemar as the “Engineer of Record,” “while making no mention of [Mr.] Garove, any other contributor, or any peer review process.” Magistrate Judge Brown then stated:

The report's conclusions are expressly premised upon “[t]he physical evidence observed at the property,” and states that “our work to complete this assignment was performed by George Hernemar, P.E.” … A substantial portion of the report is devoted to “Site Observations,” and makes repeated references to such observations. See, e.g., … (“No … evidence of recent shifting … was observed beneath the building”); … (“We observed no evidence or indication …”); … (“but no evidence or any recent shifting … was observed.”). Taken together, these statements concerning the methodology employed and the information relied upon render the report misleading.

Moreover, the changes wrought by [Mr.] Garove on [Mr.] Hernemar's work journeyed beyond misleading into the realm of misrepresentation. In the December 9 report, [Mr.] Hernemar noted that a deposit of sand prevented him from examining the foundation to determine whether it had collapsed, and would have to be removed before a “definite determination” could be reached…. As counsel for Wright elicited in cross-examination of [Mr.] Hernemar, limited access to the crawlspace similarly circumscribed the inspection…. [Mr.] Hernemar's conclusion that the foundation of the house had collapsed was, in part, an extrapolation from his examination of a neighboring house – the foundation of which was visible – and which, he believed, had been subject to similar hydrostatic forces during the storm.

Magistrate Judge Brown added that:

[N]otwithstanding the fact that the foundation walls could not be seen or photographed, [Mr.] Garove modified the report not only to remove this limitation, but to repeatedly and conclusively state that “no evidence” was observed of damage to the foundation components…. In other words, the limitations of [Mr.] Hernemar's observations and his subsequent extrapolation may have justified amending the report to make it inconclusive. Instead, under the guise of “peer review,” [Mr.] Garove transformed the report to indicate a conclusive absence of storm damage. A similar issue arises with respect to [Mr.] Garove's “observations” relating to the crawlspace. [Mr.] Hernemar testified that he had extremely limited access to the crawlspace and the three supplied photographs of the crawlspace area depict a very narrow view. Nevertheless, [Mr.] Garove introduced specific observations about the crawlspace into the report that appear entirely unsupported by [Mr.] Hernemar's report and the accompanying photographs.

Next, Magistrate Judge Brown stated, in addition to changes, Mr. Garove included the following “comment” addressed to Mr. Hernemar in the redline draft:

George:

Please note the changes/comments within the report. Please noted [sic] that we don't theorize about damages. We observe, inspect and report damages to the building. In this case, we did not observed [sic.] any damage from hydrostatic, hydrodynamic, buoyancy forces or scour or erosion of support soils that caused damage to the subject building or foundation.

Please finalize this report and send to Donna for issue.

Michael P. Garove, P.E.

Partner

(Emphasis added.)

Magistrate Judge stated that, “[u]nsurprisingly, [Mr.] Hernemar accepted all of [Mr.] Garove's changes and had the document issued as instructed.” Magistrate Judge Brown added:

Notwithstanding the vehement assertions of Wright's counsel, [Mr.] Hernemar's acquiesce to this baseless reversal of the report's conclusion and alteration of the observations does little to validate this unprincipled process.

According to Magistrate Judge Brown, the “peer review” process “extended beyond this one example.” Magistrate Judge Brown declared:

In this very case, as noted elsewhere, [Mr.] Hernemar described a peer review of his supplemental report that resulted, again, in a change to his ultimate conclusion concerning foundation damage upon reinspection…. Furthermore, [Mr.] Hernemar stated that – in his rough estimation – he completed fifty Hurricane Sandy inspections for U.S. Forensic, and that in four or five instances, extensive changes were wrought as a result of so-called peer review…. This process was limited neither to this one engineer, nor specifically to U.S. Forensic.

Magistrate Judge Brown explained that, on December 31, 2012 – after Mr. Hernemar's initial inspection but prior to the release of the January 7 report – an inspector from the City of Long Beach examined the structure. As a result of that inspection, the city provided the plaintiffs with a “substantial damage letter” dated January 3, 2013 that indicated that the house “received damages of [63.4 percent] of the value of the predamaged structure as a result of the flooding that occurred on October 29, 2012.” Magistrate Judge Brown stated that, based on that finding, the city advised the plaintiffs that the house “must either be removed … or have the lowest floor … elevated to at or above the 100-year flood elevation.” In supporting documents, the inspector calculated a replacement cost of $269,850 and an “actual cash value” of $204,546.30 for the house.

Magistrate Judge Brown said that, upon receipt of the January 7 report, “which ran counter to all of the other information received by the plaintiffs,” they began contacting Wright, seeking a second inspection by a different engineer. After “several dozen telephone calls” to Wright, “Wright relented, apparently asking U.S. Forensic to again inspect the property.”

According to Magistrate Judge Brown, on January 25, 2013, U.S. Forensic sent Mr. Hernemar to conduct a reinspection, and during this visit, the plaintiffs viewed and photographed the cover and conclusion pages of Mr. Hernemar's December 9 report. Magistrate Judge Brown stated that, as a result of the new examination, Mr. Hernemar uncovered a small amount of foundation damage to the house, for which Wright compensated the homeowners a total sum of approximately $11,000. Thus, Magistrate Judge Brown stated, the total paid by Wright on the file amounted to less than $80,000.

Magistrate Judge Brown stated that given this “relatively small insurance recovery and the damage to the home which rendered it uninhabitable, plaintiffs could no longer rent the house. Without the rental income, plaintiffs could not afford to continue paying the mortgage and property taxes, so they sold the 24 Michigan Street house for the value of the property. The house has since been razed.”

The Court's Decision

In his decision, Magistrate Judge Brown first explored Wright's discovery obligations.

He explained that, in the Eastern District of New York, the committee of magistrate judges appointed to manage Superstorm Sandy cases has effected an “expedited discovery process” through nearly a dozen case management orders (“CMOs”) and through “hundreds of conferences.” He noted that CMO# 1, issued on February 21, 2014, directed defendants to produce:

any documentation relating to an assessment of the claimed loss, including all loss reports and damage assessments, adjuster's reports, engineering reports, contractor's reports, photographs taken of the damage or claimed losses, and any other evaluations of the claim [and] all expert reports and/or written communications that contain any description or analysis of the scope of loss or any defenses under the policy.

Magistrate Judge Brown added that CMO#3 reiterated this direction:

Liaison Counsel forwarded a question from defense counsel to the Committee as to whether expert reports are subject to production pursuant to the automatic discovery process. It is hereby ordered that, to the extent that any such report was prepared prior to the issuance of this Order, such report must be produced immediately to opposing counsel. CMO# 1 expressly provides that defendants are to provide “all expert reports and/or written communications that contain any description or analysis of the scope of loss or any defenses under the policy.” CMO# 1 at 21. To be clear, any expert reports that have been prepared are required to be produced under this provision, regardless of whether a party anticipates, at this time, presenting the testimony of such expert. At the same time, CMO# 1 should not be read as imposing an affirmative duty to create such a report, but if it exists, it should be produced.

Magistrate Judge Brown stated that CMO# 3 addressed any potential claims of privilege:

Rule 26(b)(4)(D) provides that “[o]rdinarily, a party may not … discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.” However, this privilege “may only be invoked when an expert has been retained or specially employed because of the prospect of litigation, and not in the normal course of business.” QBE Ins. Corp. v. Interstate Fire & Safety Equip. Co., Inc., 2011 WL 692982 (D.Conn.2011) (rejecting application of rule to notes by claims adjustor of conversations with experts); Fine v. Bellefonte Underwriters Ins. Co., 91 F.R.D. 420, 423 (S.D.N.Y.1981)(reports producible unless “generation of the reports were in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resistable claim on a first party insurer”); Tayler v. Travelers Ins. Co., 183 F.R.D. 67, 70 (N.D.N.Y.1998) (“where there is a disagreement between the property owner and the insurance carrier as to the amount of the fire loss, the property owner/insured/plaintiff is entitled to discovery of the carrier/defendant's file and depose adjusters”) (collecting cases).

Magistrate Judge Brown stated that, since February 2014, Wright “has been under unequivocal and repeated Court direction to produce all expert reports, photographs and 'written communications that contain any description or analysis of the scope of loss or any defenses under the policy.'” Yet, Magistrate Judge Brown added, Mr. Hernemar's:

December 9 report, the redline document that transformed that report into the January 7 report, as well as a bevy of email communications surrounding the creation, transmission and modification of these documents – all of which clearly fall within the ambit of CMO 1 and 3 – have never been produced.

(Endnote omitted.)

Magistrate Judge Brown rejected Wright's contention that the “so-called 'draft'” reports were privileged:

Based upon the evidentiary hearing, I find that not only did Wright fail to demonstrate any legitimate need to protect the documents at issue, but that plaintiffs have overwhelmingly demonstrated a need for disclosure. In light of the unorthodox methodology employed to generate reports that resulted in a denial of plaintiffs' insurance claim, permitting defendant to withhold these documents would constitute a serious injustice.

Magistrate Judge Brown also found it “difficult to understand” how Wright's counsel could assert work product in good faith, explaining that because “counsel did not even appear in the matter until a year after their creation, the documents at issue simply cannot contain any mental impression of counsel, and were clearly not prepared for the purposes of litigation.”

Magistrate Judge Brown then rejected Wright's defense arising from the fact that U.S. Forensic only provided the two so-called final reports to Wright, which, in turn, disclosed those reports to the plaintiffs. Magistrate Judge Brown stated that “counsel has a duty to conduct a 'reasonable inquiry' to ensure that discovery responses are 'complete and correct.'” He added that Wright's counsel's argument seemed:

to be limited to the fact that “[i]n the Defendant's claims file, which was fully and timely produced, was an original report, and then a supplemental report.” … Thus, counsel's contention is that by producing its own file, Wright satisfied its discovery obligations and counsel discharged its duty to perform a “reasonable inquiry” merely by asking Wright for that file.

However, Magistrate Judge Brown ruled:

Under the circumstances, this level of investigation did not satisfy counsel's obligations. As this Court repeatedly directed the parties to produce all reports and written communications, an investigation that failed to include an inquiry with the engineering firm is clearly insufficient under the circumstances. This is particularly true where, as here, as defendant's counsel well knew, plaintiffs were not permitted to seek discovery directly from U.S. Forensic, as such disclosure was not authorized under the CMOs, and there was a reasonable chance that U.S. Forensic would prove to be defendant's expert at trial.

In fact, one particular aspect of discovery in this matter undermines defense counsel's claim that provision of the two reports in Wright's claims file effectively discharged its obligations under this Court's discovery orders. Among the items ordered produced in CMO 1 were “all … photographs taken of the damage or claimed losses.” … [Mr.] Hernemar testified that while he attached approximately twenty photographs of the property which were included as part of his December 9 (and ultimately January 7) reports, he took more than fifty photographs which were supplied to U.S. Forensic. The January 7 report, which became part of Wright's claims file and was produced, notes that:

Representative photographs are in the attachments. The photographs taken but not included in the report are available upon request.

…

Thus, in order to comply with this Court's directive that all photographs be provided, defendant would necessarily have had to contact U.S. Forensic to obtain the additional but unsupplied photographs expressly identified in the report. Thus, counsel's limitation of its discovery inquiry to Wright's claims file was a clear violation of its discovery obligations.

Magistrate Judge Brown found that “after receiving evidence that the engineers report apparently had been altered, counsel for Wright initially did little to investigate the matter.” Next, “counsel for Wright endeavored to prematurely circumscribe the hearing, which would have left the Court and plaintiffs with a distinct misimpression of the practices employed by U.S. Forensic.” And lastly, “even after the hearing, Wright attempted to defend the indefensible practices exposed here.”

Magistrate Judge Brown then ruled:

I find that counsel for Wright violated its obligations to comply with this Court's discovery orders, thereby unreasonably prolonging this litigation, imposing unnecessary costs upon plaintiffs and further contributing to the unwarranted delays in resolving this claim.

(Endnote omitted.)

The Remedies

Magistrate Judge Brown found that the “major effect of the reprehensible practices uncovered here – as well as counsel's failure to disclose these practices at an earlier juncture – was to unnecessarily complicate and delay this action.” He added that the “context” remained important: according to the City of Long Beach, the losses totaled approximately $205,000, while the testimony at trial suggested that the insurer already had paid out about $80,000. Thus, Magistrate Judge Brown stated, “based on these rough figures, the most that could be at issue here amounted to approximately $125,000 and, based on the coverage limits of $250,000, no more than about $170,000 could be at stake.” He added:

To a government-backed insurer, these are trifling figures, and in the world of federal cases, such figures are unimpressive, particularly when compared to the exorbitant costs of litigation. On the other hand, to individual homeowners, these are staggeringly large sums. The violations in this case resulted in many months of delay for plaintiffs, and, unnecessarily, a full day evidentiary hearing and numerous briefs to fully explore these issues.

That ends now.

Magistrate Judge Brown then stated:

I hereby prohibit defendant Wright from supporting its defenses or opposing plaintiffs' claims with any expert testimony other than that of [Mr.] Hernemar, and they may not produce, rely upon or create any expert reports other than those already produced. Defendant's application to obtain yet another expert to examine plaintiffs' claim (and its directive to plaintiff to help prepare that expert) is hereby denied. While a more significant sanction – such as striking the answer or even contempt – might be warranted on these facts, I find that this sanction constitutes a just order, which is intended to expedite this matter and avoid further unneeded complications in this case.

Magistrate Judge Brown then ruled:

Because counsel for plaintiff withheld information relating to the apparent discrepancy in reports until the mediation, no monetary sanction is appropriate for the period leading up to the mediation. However, given discovery failures by defendant's counsel, the unreasonable response by defendant to the allegations, and counsel's shocking attempt to curtail inquiry during the hearing, it is reasonable to charge the costs associated with the hearing to defendant's counsel. Plaintiffs' counsel, therefore, may make application for reimbursement from defendant's counsel for all reasonable costs associated with the motion, the hearing and all related briefing, including attorneys' fees, travel costs and transcription costs, within thirty days of the date of this Order.

Next, Magistrate Judge Brown ruled:

As a result of the startling findings contained herein, plaintiffs in this case, as well as all other Hurricane Sandy cases, must be provided with additional discovery to determine whether there are other expert reports, drafts, photographs and email communications that have not been disclosed to date.

Therefore, as an “initial response,” Magistrate Judge Brown stated:

I am directing that – within thirty days of the date of this Order – all defendants in any Hurricane Sandy case provide plaintiffs with copies of all reports described in CMO# 1 – plus any drafts, redlines, markups, reports, notes, measurements, photographs and written communications related thereto – prepared, collected or taken by any engineer, adjustor or other agent or contractor affiliated with any defendant, relating to the properties and damage at issue in each and every case, whether such documents are in the possession of defendant or any third party. Such production should provide counsel with sufficient information to proceed to mediation and/or settlement and, where necessary, trials in these cases. Furthermore, upon receipt of such information, counsel for plaintiffs may make application for further discovery as appropriate and consistent with the principles set forth in this decision. Obviously, it would behoove defendants in all cases to be as forthcoming as possible at this juncture.

The case is In re Hurricane Sandy Cases (Deborah Raimey and Larry Raisfeld v. Wright National Flood Ins. Co.), No. 14 MC 41. | No. 14 CV 461(JFB)(SIL)(GRB) (E.D.N.Y. Nov. 7, 2014). Attorneys involved include: Mostyn Law, Houston, TX, By: Steve Mostyn, Esq., Rene M. Sigman, Esq., Denis G. Kelly & Associates, P.C., Long Beach, NY, By: Denis G. Kelly, Esq., Gauthier, Houghtaling & Williams, LLP, Metairie, LA, By: Frederick W. Bradley, Esq., James M. Williams, Esq., for the Plaintiff; Nielsen, Carter & Treas, LLC, Metairie, LA, By: Gerald J. Nielsen, Esq., Kristina J. Fonte, Esq., McMahon Martine & Gallagher LLP, New York, NY, By: Anthony Martine, Esq., Patrick W. Brophy, Esq ., Timothy D. Gallagher, Esq., For Non–Party U.S. Forensic; The Demmons Law Firm, Metairie, LA, By: Larry Demmons, Esq., for the Defendant.