Volino v. Progressive Casualty Insurance Company

Background

The plaintiffs moved under Federal Rule of Civil Procedure 37 to compel the deposition of Wen Tan and to reopen the deposition of Progressive’s expert, Mare Spizzirri. Progressive hired Spizzirri to design and oversee a survey concerning whether used-car dealerships negotiate below advertised prices. The survey was intended to support Progressive’s position that applying a Projected Sold Adjustment to listed prices was appropriate in valuing total-loss vehicles.

Before Spizzirri’s first deposition, the defendants produced a document called the “Progressive Casualty Summary Worksheet.” The document contained only a summary of one survey response and did not include the underlying data or information about the survey’s other questions. After the court rejected Progressive’s argument that discovery from the survey contractor was improper and ordered further discovery, Progressive produced the full survey information and related correspondence.

The plaintiffs argued that the full materials undermined Spizzirri’s opinions and differed from the earlier summary. They also argued that the materials showed that the survey interviewers told dealerships that a buyer would trade in a vehicle and finance the purchase through the dealership. The plaintiffs contended that these circumstances could explain discounts from advertised prices but did not measure the cash market value relevant to their claims. The plaintiffs sought Tan’s testimony about the survey data and its handling, and sought to question Spizzirri about the newly produced information.

Rulings

The court granted the application in part and denied it in part. It denied the request to depose Tan under Federal Rule of Civil Procedure 26(b)(4)(D). That rule generally protects a non-testifying expert from being deposed unless the requesting party shows exceptional circumstances making it impracticable to obtain the same facts or opinions by other means.

Judge Schofield concluded that the plaintiffs had not made that showing. The plaintiffs possessed the underlying survey data and had Spizzirri’s testimony about the data he considered, so they could determine what information was not considered without Tan’s testimony. The court also found speculative the plaintiffs’ suggestion that Tan’s deposition was needed to determine whether Spizzirri had testified falsely. The court stated that questioning about why information was or was not provided could intrude on defendants’ counsel’s decision-making and protected attorney work product. It further stated that the plaintiffs could obtain opinions about the significance of the omitted information from Spizzirri himself.

The court granted the request to reopen Spizzirri’s deposition. It limited the second deposition to four hours and to questions about the survey and information obtained since Spizzirri’s first deposition. The parties were directed to meet and confer in good faith about scheduling and any effect the reopened deposition might have on the briefing schedule for the plaintiffs’ class-certification motion.

Disposition and significance

This was a discovery order rather than a decision on the underlying dispute about the Projected Sold Adjustment. The plaintiffs could not depose Tan, but they could conduct a limited additional deposition of Spizzirri concerning the newly produced survey materials.