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In re Cases

United States District Court, Eastern District of New York

December 8, 2014



On November 7, 2014, Magistrate Judge Brown issued a Memorandum and Order in Raimey v. Wright National Flood Insurance Co., No. 14-CV-461, one of the more than 1, 000 Hurricane Sandy cases presently being managed by the undersigned Committee of Magistrate Judges. No. 14-MC-41, Docket Entry (“DE”) [637]; In re Hurricane Sandy Cases, No. 14-MC-41, -- F.R.D.--, 2014 WL 5801540 (E.D.N.Y. Nov. 7, 2014) (“November 7 Order”). Familiarity with the facts set forth in the November 7 Order is assumed. In the November 7 Order, Judge Brown reaffirmed that defendants in all Hurricane Sandy cases must produce the reports and materials under CMOs 1 and 3. For avoidance of doubt as to the scope of those orders, Paragraph 3 of the November 7 Order directed the defendants to provide the following:

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.

November 7 Order at 26-7. Defendants were given to December 12, 2014—35 days—to provide those materials.

On November 20, 2014, the Committee issued CMO 12, reiterating the portion of the November 7 Order that affects cases other than Raimey. The Committee further noted “the Raimey Order finds that these materials ‘clearly fall within the ambit of CMO 1 and 3.’ The Committee agrees with this construction of its existing discovery Orders.” CMO 12, DE [672] at n.1. Following the November 7 Order and CMO 12, FEMA and other defendants filed more than 100 motions for reconsideration and clarification of those directives and, in many instances, filed parallel objections to Judge Brown’s determination, which are incorporated by reference into the motions for reconsideration.[1]

This Memorandum and Order rules on all of the arguments raised in the scores of submissions filed by defendants that relate to Paragraph 3 of the November 7 Order; the arguments addressed specifically to Raimey, see No. 14-CV-461, DE [95], [96], [97], will be dealt with in a separate order. As discussed herein, the motions for reconsideration are largely denied, although certain matters are clarified herein. Additionally, based upon evidence submitted by plaintiffs in Raimey purportedly demonstrating additional evidence of improper practices in connection with engineering reports, we grant plaintiffs’ application for an evidentiary hearing on these issues.

I. Raimey Issues Affecting All Cases

Despite the barrage of filings by defendants in these cases, the motions for reconsideration, clarification, and objections raise four primary arguments: (a) defendants other than the defendant in Raimey did not have an opportunity to be heard; (b) the court unfairly extrapolated from evidence by a single engineer to impose new obligations upon all defendants; (c) the order imposed on defendants should also be applied to plaintiffs; and (d) the burden on defendants is too great. See, e.g., FEMA Brief, DE [679]-1.

As an initial matter, several of these arguments rest on mistaken assumptions or a misreading of this Committee’s prior orders. One such mistake is the notion that, in directing the production of draft reports, “the November 7 Order greatly increases the automatic disclosure obligations of FEMA and other defendants.” FEMA Brief, DE [679]-1 at 4. However, this assertion, uniformly adopted by WYO defendants in virtually all of these filings, is flatly untrue.[2]

CMO 1, issued in February 2014, provides the following:

Documents routinely prepared in the ordinary course of business, including but not limited to adjusters' reports and other expert analyses, including draft reports, are not privileged and should be produced.

CMO 1, DE [243] at 10 (emphasis added). As Judge Brown noted in the November 7 Order:

since February 2014, defendant 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, 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.

November 7 Order at 16; id. at 18 (discussing “production of draft reports – and, to be clear, CMO 3 unequivocally so directs”). It is notable that in the course of preparing and filing hundreds of applications—all at taxpayer expense—attorneys for the WYO defendants seemingly failed to read the first Case Management Order in this case, which explicitly required the production of, among other things, draft reports. See CMO 1 at 10. This straightforward provision undermines several ...

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