National Credit Union Administration Board v. Wells Fargo Bank
National Credit Union Administration Board v. Wells Fargo Bank, National Association
- Katherine Failla
- 1:14-cv-10067
- U.S. District Court · Southern District of New York
- 4
In National Credit Union Administration Board v. Wells Fargo, Judge Netburn denied Plaintiffs’ motion to strike a declaration and exhibit as undisclosed expert testimony.
The ruling affected the National Credit Union Administration Board and Graeme W. Bush, whose motion to strike was denied, and Wells Fargo Bank, National Association, whose declaration and exhibit remained before the court for consideration in connection with its expert-evidence motion.
What happened
In National Credit Union Administration Board v. Wells Fargo Bank, National Association, the National Credit Union Administration Board and Graeme W. Bush asked the court to strike a declaration and spreadsheet supporting Wells Fargo’s motion challenging expert evidence. They argued that Devon Avallone-Graves had provided undisclosed expert testimony.
The court determined that Avallone-Graves was acting as a summary witness, not an expert. Her declaration described Oak Branch Advisors’ review of documents from 1,228 loans, and the spreadsheet organized the results of that review. The court said the work did not require specialized expertise merely because it was time-consuming or performed by people with expertise.
Judge Sarah Netburn denied the motion to strike and directed the Clerk of Court to terminate the motion. The court said disagreements about the declaration’s assumptions or whether it was misleading went to the evidence’s weight rather than its admissibility and could be raised in response to Wells Fargo’s expert-evidence motion.
The detailed version
- National Credit Union Administration Board v. Wells Fargo Bank · No. 1:14-cv-10067
- Katherine Failla
- May 7, 2020
Background
The National Credit Union Administration Board and Graeme W. Bush moved to strike the declaration of Devon Avallone-Graves and an accompanying exhibit that Wells Fargo Bank, National Association, submitted in support of its motion concerning the admissibility of expert testimony. Plaintiffs argued that Avallone-Graves’s materials were expert testimony and should be barred because Wells Fargo had not timely identified her as an expert.
Avallone-Graves was a director and senior project manager at Oak Branch Advisors, which provided reunderwriting, due-diligence, and litigation-consulting services. At defense counsel’s request, Oak Branch reviewed materials associated with 1,228 loans that Plaintiffs’ reunderwriting expert, Gary Shev, had relied on in identifying alleged breaches of representations and warranties. The review classified documents and dates, and then analyzed whether the materials were created after loan origination or after the date when Plaintiffs alleged Wells Fargo discovered or should have discovered a breach. The review was summarized in a spreadsheet attached to Avallone-Graves’s four-page declaration.
Parties’ Arguments
Plaintiffs argued that Avallone-Graves was functioning as an expert because her declaration presented new analysis, her team performed complex work, and she changed some document dates based on assumptions about when the documents were created. Plaintiffs also argued that the declaration contained misleading information.
Court’s Analysis
The court distinguished expert testimony from summary evidence. Expert testimony involves opinions based on scientific, technical, or other specialized knowledge that helps the factfinder understand evidence or decide an issue. Summary evidence, by contrast, uses a summary, chart, or calculation to present the contents of voluminous records that cannot conveniently be examined in court.
The court concluded that the declaration and exhibit were summary evidence, not expert evidence. The declaration described Oak Branch’s review process and summarized the results of its sorting exercise; it did not present new analysis. The exhibit organized the review’s findings and did not require expertise to create. The court also held that the time-consuming nature of the work, the expertise of the people who performed it, and assumptions about document dates did not convert the materials into expert testimony.
The court further stated that objections to the assumptions or to allegedly unclear or misleading testimony concerned the evidence’s weight rather than its admissibility. Plaintiffs could raise those objections in responding to Wells Fargo’s motion concerning expert evidence.
Disposition
The court denied Plaintiffs’ motion to strike. The Clerk of Court was respectfully requested to terminate the motion at ECF No. 500.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.